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
1.3
Agreements between openmedical and individual
Users that deviate from these GTC shall only apply if openmedical agrees to
them in writing.
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.
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.
4.1
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.
5.2
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).
6.1
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.
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.
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).
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.
4.1
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.
5.1
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.
6.1
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.
7.1
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.
8.1
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.
9.1
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.
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.
11.1
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.
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.
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.
3.3
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.
4.1
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.
5.1
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.