General Terms and Conditions

 

Version dated 1st January 2024

 

Contents

A. General 2

1. Scope of these General Terms and Conditions. 2

2. Online registration / activation. 2

3. Conclusion of contract 2

4. Term and termination. 3

5. Privacy policy. 3

6. Confidentiality. 4

7. Marketing and advertising. 4

B. Electronic health record (eGD) 4

1. Functionality. 4

2. eGD service / right of use. 5

3. Exclusion from the eGD service / offers from third parties. 5

4. Technical requirements. 5

5. Maintenance and further development 5

6. User obligations. 6

7. Fees and costs. 6

8. Intellectual property. 6

9. Guarantee and responsibility for content 7

10. Limitation of liability. 8

11. End of the right of use. 8

C. Final provisions. 8

1. Severability clause. 8

2. Assignment and delegation. 8

3. Amendments to the contractual conditions. 8

4. Communications. 9

5. Applicable law and jurisdiction. 9

 


 

A.            General

1.            Scope of these General Terms and Conditions

1.1          These General Terms and Conditions (the GTC or the Contract) apply between openmedical AG, based in Reinach (BL), CHE-109.447.715 (openmedical), and the Patients[1] (Users; (openmedical and Users are separately referred to as a Party and together as Parties). Doctors, pharmacies, hospitals, medical laboratories and other healthcare providers are excluded from the scope of these General Terms and Conditions.

1.2          These GTC regulate the business relationship between openmedical and the Users in connection with their use of the electronic health record (eGD). The electronic health record eGD and related products such as the mobile app or services are jointly referred to as openmedical products.

1.3          Agreements between openmedical and individual Users that deviate from these GTC shall only apply if openmedical agrees to them in writing.

2.            Online registration / activation

2.1          A contractual relationship between the Parties shall arise either (i) by registration by the User on the website www.mednetpatient.swiss or via the App or (ii) by activation, i.e., use of an eGD that already exists for the User and has been created by a healthcare provider. Registration is free for the User.

2.2          The User warrants that all data provided or confirmed by them during registration and/or activation of their eGD is complete and correct. Changes to their personal data (e.g., Name, address, telephone and mobile number, email address, payment information, etc.), must be adjusted immediately in their account or openmedical must be informed by email (support@openmedical.swiss). openmedical accepts no liability for the consequences of changes made late or not at all.

2.3          The User must set a secure password as part of the registration process and undertakes to change this at regular intervals. They must treat their access data confidentially and may not pass it on to third parties. If there are indications that third parties have gained knowledge of the User's access data, the User must change their password immediately or arrange for their account and/or access to be blocked. To the extent permitted by law, openmedical rejects any liability for damages or consequential damages resulting from the disclosure of access data. The User acknowledges that actions taken using their access data prior to blocking are their own or have been authorized by them and are fully responsible for them.

2.4          In the event of a breach of any of the provisions in these sections A.2.2 and A.2.3 by the User, openmedical is entitled to block and/or delete the User's account and/or access and/or to claim damages.

3.            Conclusion of contract

By completing the registration process in accordance with section A.2 above and/or by first using or logging into the account (online or app), the User acknowledges and agrees to these GTC. At the same time, the User thereby submits an offer to openmedical to conclude a contract regarding the use of openmedical products. By activating the User, openmedical accepts this offer and a contract is concluded between openmedical and the User, taking into account these GTC. The User will be informed accordingly.

4.            Term and termination

4.1          The legal relationship between openmedical and the User is concluded for an indefinite period, unless otherwise agreed between the Parties. With the death of the User, the legal relationship will end automatically and openmedical will automatically delete the corresponding eGD (subject to any mandatory statutory retention obligations).

4.2          The User has the right to terminate the contractual relationship at any time and to revoke the relevant consents to the use of their data by openmedical or by healthcare providers. The corresponding termination must be sent to openmedical in writing, but can also be made by the User in their respective account (online or via the App). The right of termination of the User in accordance with section C.3.2 is then reserved. A deletion request/a deletion order from the User will also lead to the termination of the contractual relationship. In any case, the termination or a deletion request/order by the User entitles openmedical to irrevocably delete and/or anonymize their account/eGD; any mandatory statutory retention obligations are maintained.

4.3          openmedical has the right to terminate the contract extraordinarily and without notice for important reasons. An important reason is any circumstance that makes it unreasonable for openmedical to continue the cooperation until the end of the agreed notice period. Important reasons are primarily: (i) non-compliance with legal regulations by the User (ii) serious breach of contractual obligations by the User (e.g., misuse of the openmedical products, incorrect information when concluding the contract, default of payment of at least 60 days despite written reminder, infringement of intellectual property rights despite written warning) or (iii) damage to other Users or healthcare providers by a User in a relevant manner. In this case, any remuneration or fee is calculated pro rata temporis. Claims for damages remain reserved. section C.4 applies to the notification of termination.

4.4          The accounts of inactive Users will be deleted after at least two notifications in a suitable form (see section C.4) and a lack of reaction from the User.

4.5          Furthermore, openmedical has the right to terminate the contract without reason with a notice period of seven (7) days. section C.4 applies to the notification of termination.

4.6          On the date of the effective date of withdrawal/revocation or termination, all openmedical services will be discontinued, all access rights will be deleted and the User's online account will be closed. Data from the eGD will no longer be available to the User. This is subject to statutory retention periods. At the same time, the User's right to use the openmedical products will expire.

5.            Privacy policy

5.1          The data protection information of openmedical AG applies in the currently valid version. This can be accessed here: https://www.openmedical.swiss/LegalResources/DSH_openmedical_AG_en.html.

5.2          By using the electronic health record, Users consent to the transfer of their health data to openmedical by the professional confidentiality holders. openmedical is not subject to professional confidentiality in the context of the electronic health record, but maintains the confidentiality of the information in accordance with section A.6.

5.3          The data collected within the framework of the eGD can be processed in an anonymous form by openmedical for the purpose of product improvement, medical research and transfer to third parties (e.g., clinics, healthcare providers, health insurance companies).

6.            Confidentiality

6.1          All information concerning the User, regardless of whether it is subject to medical confidentiality or not, will be treated confidentially by openmedical and used only in accordance with these GTC. See in particular the regulation on data protection in section A.5 above). Legal obligations to provide information are reserved in any case.

6.2          This confidentiality obligation already exists before the conclusion of the contract and continues even after termination of the contractual relationship.

7.            Marketing and advertising

openmedical is authorized to advertise information and/or offers of (further) own services and/or those of third-party providers within the framework of openmedical products. openmedical is authorized to inform Users at regular intervals or on special occasions by email, via the app or in another suitable way about health-related services, offers and activities of openmedical or third-party providers and to access their personal data for this purpose.

B.            Electronic health record (eGD)

1.            Functionality

1.1          The web-based, electronic health record eGD is a software-based service that openmedical provides to public and/or private companies or service providers active in the healthcare sector, but also to private individuals and patients (Users). The eGD serves on the one hand as an electronic storage of health data and on the other hand for the electronic provision, retrieval, analysis and other processing of such health data at any time for the purpose of exchange between patients and doctors, as well as other health professionals (e.g., hospitals, laboratories, medical radiological institutes, doctors, pharmacies, and/or other healthcare professionals as part of a medical treatment. At the same time, patients can purchase medical goods (e.g., medicines, consumables, etc.) and services.

1.2          The following information is summarised under the term "health data" in the sense of a non-exhaustive list: (i) medical patient data such as general information (weight, height, BMI, blood sugar, blood pressure, pulse, etc.), diagnoses, laboratory results, therapies, prescribed drugs, treatments or allergies, as well as (ii) medical documents such as treatment documentation, X-rays, vaccination certificates, doctor's prescriptions or patient directives.

1.3          openmedical can offer various additional services in connection with the eGD, which may be subject to a fee. Users will be informed in an appropriate form about new additional services and any associated costs.

1.4          "Chronic Disease Management" additional service: As part of the eGD, the Chronic Disease Management program is offered as an additional service. This service is optional and allows the User to regularly send health data to their attending physician. The details (in particular, the type of data transferred, will be determined at signup). The aim of the program is to detect deviations in the User's state of health with chronic illnesses at an early stage through regular checks. In addition, the regular ordering of medicines and laboratory reports via eGD should be made possible or facilitated.

2.            eGD service / right of use

2.1          openmedical hereby grants the User the personal, non-exclusive and non-transferable right to access the eGD in its respective valid version and to use and utilize it as intended for the intended purpose (right of use) and the User undertakes to exercise the right of use as intended.

2.2          The User receives access via eGD to their health data (entered by themselves or by healthcare providers). The User and the authorized healthcare providers can subsequently retrieve the eGD, analyze it, supplement it with further medical information and, in particular, use it for any medical treatment. The healthcare provider can also communicate with Users via the eGD and send Users documents electronically.

2.3          The User shall take into account that the health data may also be made accessible only in part, for a limited period of time or until revoked, or with different authorizations and processing rights.

2.4          Details on the eGD services as well as on the purchase of medical goods and services via openmedical or third parties are regulated in the eGD as well as on the corresponding website (https://www.mednetpatient.swiss).

3.            Exclusion from the eGD service / offers from third parties

The use of the eGD does not include services and offers provided by third parties, even if these are brokered and/or marketed via the eGD or openmedical. In these cases, the respective provider is the sole contractual partner of the User on the basis of its contractual conditions. In this case, the openmedical service is limited to the provision of the eGD, insofar as this is relevant for the provision of the services of third parties. Services and offers from third parties are marked or recognizable as such.

4.            Technical requirements

4.1          The User is responsible for providing the technical requirements (IT system, app for mobile devices, Internet access, etc.) for using the eGD after registration/activation. Data is transmitted via the Internet. The User is responsible for the provision of an Internet connection and bears all costs incurred in this context. The securing of the power supply is also the exclusive responsibility of the User.

4.2          The date, time, type of access and IP address of all accesses are logged on the eGD of the User.

5.            Maintenance and further development

5.1          The User is aware that the eGD or the underlying software and the app is revised from time to time to correct program errors or for further development in the context of new releases (software versions). If not already carried out automatically, the User undertakes to carry out corresponding updates at the request of openmedical.

5.2          The User acknowledges that the appearance, name, interfaces, behavior and output of the eGD and the App may change as a result of these further developments.

5.3          The correction of program errors by openmedical shall take place within a reasonable period of time. Maintenance, support and other services are offered exclusively via email at support@openmedical.swiss.

5.4          openmedical is not liable for any damage to the User's computer system that occurs after maintenance, unless this has been demonstrably caused by openmedical.

6.            User obligations

6.1          The User warrants that they only register a single, personal eGD for themselves and acknowledges that the opening of an eGD for third parties is not permitted. The opening is reserved within the framework of a legal or contractual right of representation. This includes, in particular, the representation of the minor child by the parents and, in general, the representation of family members or relatives based on legal or contractual representation rights.

6.2          The User undertakes to use the eGD only in accordance with the contract and for the intended purposes.

6.3          The right of use only includes the use of the eGD within the meaning of these GTC. Any other use, in particular use for your own business purposes or the like, is prohibited. The User and the authorized healthcare providers can subsequently retrieve the eGD, analyze it, supplement it with further medical information and, in particular, use it for any medical treatment.

6.4          By using the eGD or mednet products, the User does not acquire any (intellectual) property or ownership rights to mednet or the underlying software. All corresponding rights shall remain with the Licensor (see section B.8).

6.5          It is in the User's own interest to ensure that the health data they enter and store in the eGD is correct and complete. The User shall only be liable for health data entered by healthcare providers if the User can reasonably be expected to correct/report such data in good faith.

6.6          The User is responsible for deciding which other Users or healthcare providers are granted access to their eGD. The User is aware that, and bears the full risk if, an access option can be misused by third parties and unauthorized persons can also gain access to their eGD if they obtain access data. It is the sole responsibility of the User to instruct and monitor these third parties accordingly or, if necessary, to withdraw their access. openmedical is not obliged to take action against other Users for any violation of these GTC.

7.            Fees and costs

7.1          openmedical may charge the User an appropriate fee for the use of the eGD, which will be communicated and requested annually or monthly (in advance in each case). In addition, openmedical has the option of offering special services in connection with the eGD both free of charge and for a fee (see sections B.1.3 and B.1.4).

7.2          In principle, Users will be informed in an appropriate manner (online or via the app) of the fees or other costs arising from the use of the eGD. The fees for using the eGD can then be requested at support@openmedical.swiss.

8.            Intellectual property

8.1          The eGD or the software on which it is based is protected by copyright. All (intellectual) property or ownership rights as well as all property rights to the software and/or in relation to the eGD remain with novcom AG, Reinach (BL), CHE-398.697.236 (theLicensor) or, if applicable, with another Licensee in the openmedical Group.

8.2          Irrespective of the granting of the right of use in accordance with these GTC, all rights to eGD and openmedical products or the underlying software (as well as related documentation and expertise) remain with the Licensor. The User is not granted any rights of disposal, ownership or proprietary rights to the software (or to all of the Licensed Material).

8.3          It is assumed that the other third-party content accessible via the eGD or made available by openmedical with the exception of the individual health records on the eGD is also protected by copyright, and their use, unless covered by these GTC, is only permitted with the written consent of the respective author and against payment.

9.            Guarantee and responsibility for content

9.1          To the extent permitted by law, openmedical rejects any warranty and liability for any direct or indirect damages incurred by the User in connection with the use of the eGD. This includes, in particular, damage due to the use of health data, damage due to transmission errors, technical defects, interruptions, disruptions, or unlawful actions of third parties.

9.2          The User or the healthcare providers are solely responsible for which health data or other content is uploaded to the eGD or forwarded to third parties and disclosed to them. To the extent permitted by law, openmedical excludes any responsibility for health data or other content uploaded to the eGD by the User or the healthcare provider, in particular its correctness, completeness, up-to-dateness, legality, appropriateness and availability, as well as its suitability for a specific purpose. openmedical accepts no liability for any damage or consequential damage resulting from the aforementioned reasons. In particular, openmedical excludes any liability for damage or consequential damage caused by system interruptions or failures and is also not liable for data losses in the eGD.

9.3          openmedical is in no way responsible for actions taken in relation to a User on the basis of the health data transmitted.

9.4          The User shall bear all risks that may arise from (unlawful) manipulation or interference by third parties with its IT systems, from the misuse of access data to the openmedical products, or in the context of data transmission.

9.5          While openmedical makes every effort to ensure a high level of availability of the eGD, it offers no guarantee of uninterrupted, fault-free and/or error-free functioning or availability.

9.6          openmedical explicitly excludes any liability for damage or the consequences of damage due to unforeseen events, such as Interruptions or disruptions due to force majeure (e.g., power failure, virus attack, natural events, etc.), or third-party fault, overloads or other disruptions to network connections, official measures (in particular unforeseeable restrictions), changes to services by the healthcare provider or practice software manufacturers, etc.

9.7          openmedical takes precautions to protect data and systems from third-party interference. However, it cannot guarantee that openmedical products are fully protected against unauthorized access or unauthorized interception or that malicious software, spyware, hacker or phishing attacks, etc., will not impair the use of openmedical products, damage the infrastructure of the User or damage it in any other way. If a connection of the User damages or endangers the eGD, openmedical may discontinue its services without notice and block the User's access to the eGD or other openmedical products.

9.8          Any guarantee and liability for third-party software used in connection with the use of openmedical products is excluded to the extent permitted by law.

9.9          openmedical points out that the eGD may contain connections or references ("links") to third-party websites. The accuracy and completeness of such information cannot be checked by openmedical; any responsibility for its content is rejected by openmedical.

10.          Limitation of liability

To the extent permitted by law, the liability of openmedical for itself or its vicarious agents for all damages, including indirect damages and consequential damages (e.g., loss of profit, third-party claims, loss of data, etc.) is excluded.

11.          End of the right of use

11.1        With the termination of the contractual relationship between openmedical and the User, the right to use the eGD also expires with immediate effect and automatically. The User may no longer use the eGD after termination of the contractual relationship and otherwise infringes the Licensor's copyrights.

11.2        The User reserves the right to their personal health data.

C.            Final provisions

1.            Severability clause

Should one or more provisions of these GTC be invalid or unenforceable in whole or in part, this shall not affect the validity or enforceability of the remaining provisions of these GTC. Instead, the (partially) invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic purpose of the provision to be replaced.

2.            Assignment and delegation

This contract or individual rights and obligations arising from it may only be assigned or transferred to third parties with the prior written consent of the other Party. A full or partial transfer of this contract or individual rights and obligations arising from it from openmedical to another group company, e.g., Novcom AG, is permitted without the consent of the User at the discretion of openmedical.

3.            Amendments to the contractual conditions

3.1          openmedical reserves the right to adjust the contractual conditions, including their services or openmedical products, prices and/or these GTC, at any time and without giving reasons. Changes will be announced to the User via their respective account (online or via the app) and/or in other suitable ways in electronic or other form and will come into force with their publication. At the same time, corresponding changes can also be communicated to Users personally via email to the email address provided by the User as part of the registration process.

3.2          If the User does not accept the changes, they have the option of terminating the contractual relationship with openmedical within 30 days of publication via their account (online or via the app) or via email to support@openmedical.swiss In the event of termination, the contractual relationship ends retroactively to the date of publication. Without written notification within this period, the changes shall be deemed to have been approved by the Users.

3.3          The GTC can be viewed and downloaded in the currently valid form in the User's account (online or via the app) or on the websites https://www.mednet.swiss or https:// www.mednetpatient.swiss.

4.            Communications

4.1          Unless otherwise agreed in these GTC, all written communications from openmedical to Users can also be sent via email to the email address provided by the User as part of the registration process. They are deemed to have been sent and delivered upon sending. Communications in other forms (e.g., via the app) are also permitted and valid.

4.2          There are no verbal ancillary agreements to this contract or to these GTC.

5.            Applicable law and jurisdiction

5.1          Subject to mandatory applicable law, these GTC are subject to Swiss substantive law, to the exclusion of conflict of law rules and the Vienna Sales Convention (CISG).

5.2          The courts at the registered office of openmedical or at the place of residence of the respective User shall have exclusive jurisdiction for all legal actions of the User arising from or in connection with the legal relationship between openmedical and the User. The courts at the place of residence of the respective User shall have exclusive jurisdiction for corresponding actions brought by openmedical. Further mandatory places of jurisdiction remain reserved.



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