Order Form
* marked fields are mandatory
Billing Address
Credit card information
Titel
___________
Name*
____________________________
Cardholder*
_________________________
Last name*
____________________________
Card number*
_________________________
Company/Clinic * ____________________________
Address*
____________________________
Address
____________________________
City*
____________________________
Zip Code*
____________________________
Email Address*
____________________________
Expiration date (MM/YY)* _________________________
I agree that the products ordered by me (listed
below), will be debited from my credit card.
Products and Prices
General terms and conditions apply. All prices including VAT. Plus shipping costs*.
Choice
Description
Article-No.
EURO
A00145
199,00
12-leads subscription-module
A00146
9,95
22-leads subscription-module
A00147
9,95
Flex subscription-module (1 product exchange per year)
A00148
9,95
Warranty module (+ 2 years on VAT warranty)
A00162
9,95
Automatic ECG-Interpretation/measurement (HES-Algorithm)
A00161
19,95
CardioSecur case (ca. 14 x 8 x 4cm)
A00141
inclusive
CardioSecur electrodes (168 disposable electrodes = 42 readings)
A00098
59,00
CardioSecur PRO (one-off)
Subscription module (collected monthly /monthly cancellable)
Accessories for single purchase
* The amount of the shipping costs depends on the shipping destination.
I have read the attached Terms and Conditions and agree.
_______________________________
Signature
Personal MedSystems GmbH
Niederlassung: Hansaallee 154, D-60320 Frankfurt a. M.
Hauptsitz: Kurfürstendamm71, D-10709 Berlin
____________, 2015
Date
Berliner Volksbank
BLZ 10090000 • Kto.-Nr. 2100460001
IBAN: DE03 1009 0000 2100 4600 01
BIC/SWIFT: BEVODEBBXXX
Geschäftsführer:
H. van Baars, F. Brand, Dr. M. Riemenschneider
Amtsgericht Charlottenburg HRB 114144 B
USt.-Id.-Nr. DE260540641
St.-Nr. 27/425/06948
General Terms and Conditions
of
Personal MedSystems GmbH
Hansaallee 154
D-60320 Frankfurt am Main
As of: 17th Februrary 2015
We, the Personal MedSystems GmbH (hereinafter referred to as “PMS”), offer to consumers goods and services for mobile health
via our online shop or the App Store of the respective smartphone provider.
The following General Terms and Conditions (hereinafter referred to as “TC”) regulate the contractual relationship between the
client and PMS for both ordering goods and the provision of services to clients.
If you intend purchasing goods and services from us, e.g. within the scope of our product package and subscription offerings, please
read both sections carefully! PMS provides its services exclusively according to these TC.
I. Area of Application / Offer / Conclusion of Contract
1. Area of Application
We shall provide our contractual services exclusively on the basis of these TC, which in individual cases, may be supplemented or
modified by product-specific price lists, descriptions of services or additional contractual documents.
2. Offer by PMS
2.1 PMS sells ECG-devices for smartphones and tablet-PCs including accessories via its website „http://www.cardiosecur.com“
(hereinafter referred to as “Website”). In addition PMS provides its applications free of charge in the app store of the respective
smartphone and tablet-PC provider.
2.2 PMS operates an integrated, internet-based service platform (hereinafter referred to as the “ISP”), that is, a database that
enables a physician to view, download, save and print out (hereinafter referred to jointly as “make accessible”) the client’s medical
data (hereinafter referred to as “medical data”).
2.3 PMS enables the client to set up a user account (hereinafter referred to as “UA”) on the ISP on which the client can save, view
and administer his medical data. Only one UA can be set up for each client. PMS shall make the data submitted by the client to the
UA accessible only to the registered physician selected by the client vis-à-vis PMS on the ISP (hereinafter referred to as the
“physician”). The prerequisite for this is that the physician has in turn registered a physician’s user account (hereinafter referred to
as the “physician UA”) on the ISP.
2.4 PMS is not involved in any legal relationships whatsoever between the physician and the client. In particular, any evaluation of
the medical data made accessible to the physician and any medical action to be taken by the physician resulting from such an
evaluation are not the subject of this agreement, but are subject solely to the legal relationships between the client and his
physician. The physician is not obliged, on the basis of this agreement, to view the data in the client’s UA or to react within a certain
period of time. PMS is furthermore not obliged to contribute to the materialisation of legal relationships between the client and his
physician, nor to influence their content in any way.
2.5 The client may change his chosen physician at any time via the UA. As soon as a selection has been made, PMS shall make the
medical data accessible only to the physician newly selected by the client.
2.6 The client is advised that the contractual relationship between the client’s physician and PMS can be terminated at any time to
the end of a calendar month with two weeks’ notice. In this case, PMS may no longer make any medical data of the client
accessible to the selected physician. The client has the opportunity to select another physician and to notify PMS accordingly.
2.7 The client is also advised that the contractual relationship between the client’s physician and PMS shall end if the physician
should fail to renew the proof of identity of his registration as a physician on the ISP within a stipulated time limit.
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2.8 PMS shall not assume any liability vis-à-vis the client for the information about physicians registered on the ISP with regard to
their person, office, proofs of identity and valid registration being correct or complete.
2.9 The client’s medical data are transmitted to the UA via the client’s computer or smartphone (regarding the technical
requirements for computers and smartphones and regarding the installation requirements, see the performance specifications of
the CardioSecur device) in combination with Internet access and additional software provided by PMS. The software required must
be downloaded by the client from PMS’s website or the App Store of the respective smartphone provider. PMS shall not assume
any responsibility for the correct installation of the software on the client’s end device and for compliance with the installation
requirements by the client. For the rest, the performance specifications of the CardioSecur device and the installation requirements
mentioned therein for the software to be downloaded by the client shall apply.
2.10 Insofar as third parties other than the physician (e.g. the client’s health insurance company) should gain access to the UA and
the data contained therein, the effective written consent of the client vis-à-vis PMS is required for this. By utilizing a voucher or by
accepting an offer made by an insurance provider regarding PMS, following section 10.5 the client consents, subject to the
contractual agreement in place between the client and his health insurance provider, that the health insurance provider shall be
enabled to view the client’s UA and the data contained therein.
2.11 PMS shall guarantee a 99% annual average availability of its web server of the ISP. This excludes periods of time in which the
web server is not available owing to technical or other problems outside PMS’s sphere of influence (force majeure, fault of third
parties, etc.) and maintenance work announced by PMS.
3. Conclusion of Contract
3.1 Offers made by PMS are non-binding. By ordering in the PMS webshop, registering to the ISP via PMS’s website or the PMS app
software, the client submits a binding offer to PMS to conclude a contract with him. First of all, the client receives a confirmation of
the receipt of his order / registration by e-mail to the e-mail address he has provided (hereinafter referred to as “order
confirmation”). However, a contract is only concluded when PMS sends the acknowledgement of order to the client by e-mail,
when PMS performs the unconditional delivery of the ordered goods or when PMS starts to provide the service.
3.2 By submitting his binding offer to PMS the client confirms that he has full capacity to contract and that, in particular, he is of full
age.
3.3 The client is obliged to enter the personal data required to register a UA on the ISP in full, accurately and truthfully. If any
master data (e.g. address in the event of a move) required in the registration of the client onto the ISP or payment data change
during the term of existing contracts, the client is obliged to notify PMS of this promptly by changing the data online in his UA
under his user profile himself.
3.4 When ordering via the PMS online shop, the ordering process involves a total of four (4) steps. In the first step, the client selects
the desired goods. In the second step, he enters his customer details, including invoice address and any deviating delivery address.
In the third step, the client chooses how he wishes to pay. In the final step, the client has the opportunity to check all of the
entered details once again (e.g. name, address, method of payment, items ordered) and to correct them, where appropriate,
before sending us his order by clicking on “purchase”.
3.5 We shall save the wording of the contract of the client’s order. The client can print out the order he is placing with us prior to
sending it by clicking “Print” in the browser menu. We will also send the client an order confirmation or an acknowledgement of
order with all of the order data to the e-mail address specified by the client.
3.6 Illustrations and details of dimensions, weights and details of performance shall be deemed to be approximations. They are not
binding unless they have expressly been described as binding. We retain the rights of title and the copyrights in respect of drawings
and other documents. These objects may not be made accessible to third parties.
4. Obligations of the Client
4.1 The client can place orders with us only with prior registration of a user account (hereinafter referred to as “UA”).
4.2 The client is obliged to enter the personal data required to place his order and to register with our online shop / the ISP in full,
accurately and truthfully. If any master data (e.g. address in the event of a move) required for the registration with our online shop
or as payment data change during the term of existing contracts, the client is obliged to notify us of this promptly by changing the
data online himself.
4.3 The client shall create all conditions within his sphere that are necessary for the correct provision of our services.
4.4 The client undertakes to make only legitimate use of our online shop , website, our apps and the ISP (hereinafter referred to as
“our services”). He assures that, in the context of the use he shall not retrieve or disseminate any criminally relevant content nor
breach any other rights of third parties (in particular industrial property rights and competition rights) or any other applicable
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statutory provisions. It is particularly forbidden to disseminate content that may be liable to corrupt minors, or child
pornographic/pornographic, extremist or racist content, virus attacks, chain letters or to send masses of e-mails with identical
content without the respective recipient’s consent (so-called spamming). It is also forbidden to misuse our services for attacking
the safety precautions of a third-party network, host or account (cracking, hacking and denial of service attacks). The
aforementioned acts entitle us to execute immediate extraordinary termination of the contract without having to state the reasons
and to block the client’s access to our services.
4.5 The client shall release us from any claims asserted by third parties due to the unlawful use of our services by the client. The
client shall notify us immediately of any utilisation by third parties due to the unlawful use of our services.
4.6 The client declares that if he intentionally or unintentionally, knowingly or unknowingly enables third parties to use his access
or his login name, he shall be fully responsible for all online acts undertaken by these persons. The client is liable for any such
occurring misuse and shall bear all costs incurred by the unauthorised use.
4.7 The client shall keep his connection code (login name, password, possibly PINs and REALM) secret and shall ensure its proper
use. We point out that saving passwords, etc. on the computer, smartphone or tablet generates a risk of misuse by third parties. If
there are fears that third parties have gained knowledge of the password, etc., without authorisation, then the client is obliged to
notify us immediately and to have the respective data changed or, if possible, change them himself. The client shall bear the
blocking costs or the costs of changing the connection code insofar as he is responsible for the necessity to undertake the blocking
or changes.
4.8 Although we regularly back up data, we cannot guarantee that all of the client’s data will be backed up. The client takes note of
this and shall ensure that his data is backed up on a regular basis. We shall assume no liability for the loss of the client’s entries and
data.
4.9 If we become aware of any illicit act by the client or if we are informed of a supposedly illicit act by third parties, we shall
forward the personal data to the law enforcement and regulatory authorities within the framework of statutory provisions. If,
based on statutory provisions, we should be required beforehand to check the legitimacy of the transmission or the contested act,
we shall comply with this request.
4.10 If third-party misuse of the client’s data is suspected, the client shall notify PMS immediately by telephone. Crosschecking the
client’s personal data performs proof of the identity of the client via the telephone. As soon as PMS becomes aware of the
unauthorised use, it will block the client’s UA. PMS reserves the right to then immediately change the client’s personal connection
code (user name, password, etc.) and to send it to the client by e-mail.
4.11 If the client culpably breaches his contractual obligations, then we are entitled to block the login name. In the event of severe
breaches, we retain the right to execute the extraordinary termination of the client’s registration to our services.
5. Right to Revoke
If the contract with PMS is concluded using only means of distance communication, that is, online, by e-mail, telephone, fax or
letter post, or in the case of doorstep selling, the client has a right of withdrawal in accordance with the following provisions,
provided that the client is a consumer within the meaning of § 13 of the German Civil Code (BGB), that is, that he is a natural
person and the transaction cannot be assigned to his commercial activities or his activities as a self-employed person:
a) Revocation Instructions (purchase of single products / one-off purchase)
Right to Revoke
You can revoke your declaration to conclude a contract within 14 days without indicating any reasons.
The time limit (revocation period) is 14 days from the day, that you or a third party authorized by you, who is not the carrier, took
the goods into possession.
To exercise your right to revoke you must inform Personal MedSystems GmbH, Customer Support, Hansaallee 154, D-60320
Frankfurt am Main, email: [email protected], fax: +49 (0) 69/90747784, by means of a clear statement (e.g. in a letter, fax or
email) formulating your decision to revoke this contract. You may use the attached revocation template, which, however, is not
compulsory.
The revocation period shall be met if you expedite the revocation notice before the revocation period terminates.
Consequences of Revocation
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In the event of an effective revocation, we shall reimburse any payments that we received from you, including shipping costs (with
the exception of additional cost incurred by you in choosing a shipping method different from our favourable standard shipping
method) immediately and at the latest 14 days from the day on which we received your revocation notice for this contract. For this
reimbursement we resort to the same payment method that you chose when placing your order, unless a different payment
method was expressly agreed between us. On no account will you be charged fees for the reimbursement.
We are entitled to refuse reimbursement until we receive the goods or until you have provided us with proof that you returned the
goods, depending on which is the earlier point in time.
You are obliged to return the goods immediately and at the latest within 14 days from the day on which we received your
revocation of this contract. The revocation period shall be met if you expedite the goods before the revocation period of 14 days
terminates.
You shall bear the imminent cost of returning the goods.
You will have to compensate us for any deterioration of the goods, unless the deterioration results only from an examination of the
goods such as it could also have been performed in a store and is not caused by your undue handling of the goods.
b) Revocation Instructions (subscription model)
Right to Revoke
You can revoke your declaration to conclude a contract within 14 days without indicating any reasons.
The time limit (revocation period) is 14 days from the day, that you or a third party authorized by you, who is not the carrier, took
the goods into possession the first time.
To exercise your right to revoke you must inform Personal MedSystems GmbH, Customer Support, Hansaallee 154, D-60320
Frankfurt am Main, email: [email protected], fax: +49 (0) 69/90747784, by means of a clear statement (e.g. in a letter, fax or
email) formulating your decision to revoke this contract. You may use the attached revocation template, which, however, is not
compulsory.
The revocation period shall be met if you expedite the revocation notice before the revocation period terminates.
Consequences of Revocation
In the event of an effective revocation, we shall reimburse any payments that we received from you, including shipping costs (with
the exception of additional cost incurred by you in choosing a shipping method different from our favourable standard shipping
method) immediately and at the latest 14 days from the day on which we received your revocation notice for this contract. For this
reimbursement we resort to the same payment method that you chose when placing your order, unless a different payment
method was expressly agreed between us. On no account will you be charged fees for the reimbursement.
We are entitled to refuse reimbursement until we receive the goods or until you have provided us with proof that you returned the
goods, depending on which is the earlier point in time.
You are obliged to return the goods immediately and at the latest within 14 days from the day on which we received your
revocation of this contract. The revocation period shall be met if you expedite the goods before the revocation period of 14 days
terminates.
You shall bear the imminent cost of returning the goods.
You will have to compensate us for any deterioration of the goods, unless the deterioration results only from an examination of the
goods such as it could also have been performed in a store and is not caused by your undue handling of the goods.
II. Special Terms for the Purchase of Goods
6. Liability and Defects
6.1 If the object of the sale is deficient, statutory provisions shall apply. These claims by the client cannot be assigned.
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6.2 If supplementary performance is executed by way of a replacement delivery, the client is obliged to return the originally
delivered goods to us within 30 days at our expense. The defective goods shall be returned in accordance with statutory provisions.
We reserve the right to assert compensation for damages under legally defined conditions.
6.3 The period of limitation is twenty-four months, starting from the delivery.
7. Reservation of Proprietary Rights
The goods delivered by PMS shall remain PMS’s property until they have been honoured in full.
III. Special Terms for the Provision of Services and Usage of a UA
8. Obligations of the Client, Security Regulations, Duties of Care
8.1 The client shall create all conditions within his sphere that are necessary for the correct provision of the services by PMS. In
particular, the client shall independently and at his own expense ensure his access to the Internet and that he has the necessary
technical infrastructure (hardware, software with TCP/IP protocol, browser, modem, telecommunications, and so on). The client
shall bear the risk of the loss of data during transmission. The client alone is responsible for the equipment he uses (hardware and
software) and for its suitability for data transmission with PMS.
8.2 It is not permitted to use the UA to save other data than that transmitted by PMS’s software.
8.3 The servers applied or used by PMS are secured by firewalls, in compliance with the state of the art. The client is expressly
advised by PMS that, according to the current state of the art, security cannot be comprehensively guaranteed when transmitting
data in open networks such as the Internet. The client is aware that third parties may possibly be able to view his data at any time
without authority, may interfere with network security and can control communication. For this reason, the client shall take
responsibility for the security of the data transmitted to PMS by him via the Internet; this is the subject of the contract between the
client and his respective telecommunication services provider or internet service provider.
8.4 The data stored on the server applied or used by PMS are secured by an appropriate state-of-the-art back-up system. However,
PMS cannot guarantee that all of the client’s data will be backed up. The client takes note of this. PMS shall assume no liability for
the loss of the client’s entries and data.
8.5 In addition, if the client breaches these TC to a more than immaterial extent, PMS is entitled to block the client’s UA. This is
particularly the case
when there is reasonable doubt as to the correctness or completeness of the client’s registration data or as to the active user’s
authorisation and the client, upon the request of PMS, has not immediately dispelled the doubts at his own expense by presenting
suitable supporting documents,
if there exists a reasonable suspicion that the security provisions and duties of care have been breached.
PMS explicitly reserves the right to further claims.
9. Contract Period, Termination
9.1 In absence of different agreement the contract shall be valid for a minimum of 24 months. If the client does not terminate the
contract three (3) months before the expiration of the term at the latest, the contract is extended for an indefinite period. The
contract may then be ordinarily terminated by either party to the end of a calendar month with three (3) months’ notice.
9.2 If the client (or, where appropriate, his health insurance company) defaults for two consecutive months on the payment of a
not inconsiderable part of the remuneration owing or on an amount corresponding to the monthly price for a period lasting longer
than two months, then PMS can terminate the contractual relationship without observing a notice period. PMS reserves the right
to assert claims for damages. The user reserves the right to prove that less damage occurred than that for which a claim was
asserted.
9.3 For the rest, the contractual parties’ right to terminate for cause remains unaffected.
9.4 Unless expressly agreed otherwise, all terminations must be made in writing (or in text form), whereby the signed declaration
of termination must be submitted by fax or by e-mail (as a scanned document, e.g. PDF) to abide by text form.
IV. General Terms
10. Prices, Shipping, Conditions of Payment, Blocking
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10.1 All prices owed by the client are payable in EUROS. Unless expressly specified otherwise, all prices are deemed to be final
prices including statutory value-added tax, in so far as it applies.
10.2 Unless expressly agreed otherwise and with the exception of one-off orders, the amounts due are generally invoiced on a
monthly basis and are payable upon the receipt of the invoice by the client. Regularly recurring amounts due for payment on a
monthly basis are each payable in advance.
10.3 Regularly recurring amounts due for payment by the client on a monthly basis can be executed by direct debit (direct debiting
scheme). The direct debit can only be authorised online via the electronic ordering process. The following information is required
for direct debit authorisation:
Billing account,
Surname and first name of the account holder,
Account number and bank code, as well as the institute at which the account is kept
Place and date
10.4 Other payment options that may be offered to the client arise from the respective ordering process.
10.5 Insofar as, on the basis of a separate contractual agreement, the client’s health insurance company shall assume part or all of
the payments to PMS, this will be indicated in the respective order process. The health insurance company can, as the case may be
and depending on the agreement in place, purchase e.g. vouchers from PMS, which it will give to the client. The vouchers contain
the client’s name, his customer number with his health insurance company, the voucher code, the validity period of the vouchers,
as well as the services provided by PMS that the client can utilise with the respective voucher. When utilising the services provided
by PMS, the client can enter the voucher code; the amount payable by the client shall then be reduced by the share of the costs
assumed by the health insurance company (potentially up to 100%). The vouchers are non-transferrable and are linked lastingly to
the client’s UA and the data entered there (name and customer number).
By utilizing a voucher or by accepting an offer made by an insurance provider referring to PMS, the client consents, subject to the
contractual agreement in place between the client and his health insurance provider, that the health insurance provider shall be
enabled to view the client’s UA and the data contained therein.
10.6 In individual cases, PMS reserves the right to exclude methods of payment. In the event that a payment fails or is not possible,
PMS is entitled to block the UA on the ISP for the client.
10.7 In the event of a default in payment, PMS can request default interest at the statutory rate. The client shall bear any costs, in
particular fees, for failed payments for which the client is responsible. PMS is entitled to an allowance of 5.00 EUROS per month for
processing and monitoring for each month or part thereof during which a delay in payment occurs, as well as for failed payments
for which the client is responsible. The client is entitled to provide evidence that the damage did not occur in the first place or that
a much lower amount was incurred. PMS reserves the right to claim for damage caused by delay beyond that.
10.8 In the event of a default in payment, PMS is additionally entitled to block the ISP for the client. The client may only be blocked
from using the ISP for the duration of the continuance of the reason for the blocking. The block shall not release the client from the
obligation to pay the stipulated prices. The block shall be reversed or shall remain undone if well-founded objections are raised
against the invoice or an extension agreement has been made.
10.9 The client’s obligation to pay also exists for invoice amounts resulting from the authorised or unauthorised use of the ISP / the
UA by third parties, insofar as the client is responsible for this. The client shall be responsible for any use he facilitated or approved
in a way attributable to him.
10.10 The client can only offset undisputed or final and conclusive counterclaims against PMS’s claims. The client may only exercise
a right of retention if his counterclaim is based on the same contractual relationship.
10.11 The aforementioned provisions of this contract item, which entitle PMS to block UA on the ISP for the client or to withhold
performance, apply accordingly for the case that the client’s health insurance company has assumed his obligations to pay vis-à-vis
PMS and does not comply with these obligations.
11. Liability
The following provisions shall apply to PMS’s liability as well as to its liability for its employees, vicarious agents and executing aides
– for whatever legal reasons:
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11.1 Liability shall only be assumed for damage insofar as it was based on a premeditated act, gross negligence or the culpable
violation of a material contractual obligation. Material contractual obligations in this sense are obligations that protect the legal
positions of the client that are material to the contract and that have to be granted to the client under the contract in terms of
subject matter and purpose; material contractual obligations are also those whose fulfilment is a prerequisite for enabling the
proper fulfilment of the contract in the first place and in which the client regularly trusts and may normally trust. If a material
contractual obligation is violated, liability is restricted to the foreseeable damage.
11.2 The liability limitations stated above shall not apply in the event of the loss of life, physical injury and damage to health, for a
defect after assumption of a guarantee for the quality of the product, or for maliciously concealed defects. Liability under the
Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
11.3 PMS shall only be responsible for third-party content on its website and on the ISP
a) if PMS is aware of the unlawful acts or the information and, in the event of claims for damages, is also aware of the facts or
circumstances from which the unlawful act or the information became apparent and
b) if PMS did not take prompt action to remove the information or to block access to it the moment PMS became aware of it.
11.4 PMS expressly dissociates itself from the content of all sites to which direct or indirect references (so-called “links”) are made
from PMS’s website and their offerings; PMS shall assume no responsibility or liability whatsoever for such content. The providers
of the respective sites are responsible for the content of these sites. The same applies to all content of sites portrayed in so-called
“frames” below a navigation bar within PMS’s website and its offerings.
11.5 If damage claims are raised, then they must be asserted by way of an action within 3 months of their written rejection by PMS.
Any later assertion shall be ruled out unless independent proceedings for the taking of evidence have been initiated within the time
limit.
12. Data Protection
12.1 PMS takes the protection and security of the client’s data very seriously and shall observe the data protection regulations,
such as the German Data Protection Act and the German Broadcast Media Act, when processing the client’s data.
12.2 PMS is entitled to anonymise personal data in accordance with applicable statutory regulations in order to improve its services
and provide these to third parties exclusively for research to counter cardiac disease.
12.3 In addition to these TC the “Privacy Policy” (retrievable at “http://www.cardiosecur.com”), which constitutes an important
part of the agreement between the client and PMS, shall apply.
13. Final Provisions
13.1 Subject to deviating provisions in these TC, the client may not transfer any rights granted under this contract or the contract as
a whole to third parties unless PMS grants its express written consent to this. PMS will grant its consent if the client has reasonable
interests that outweigh the interests of PMS that are worth protecting. PMS is permitted to transfer this contract to a company
with which PMS is affiliated (§ 15 of the German Stock Companies Act (AktG)).
13.2 Declarations of will may be given by either contractual party in electronic form and shall thus be deemed as having been given
in writing, provided there is no statutory requirement of the written form or the present TC exclude the electronic form.
13.3 This contract shall be governed exclusively by German law. Application of the “Uniform Law on the International Sale of
Goods” and the “Uniform Law on the Formation of Contracts for the International Sale of Goods” and the “United Nations
Convention on Contracts of International Sale of Goods” is ruled out. This choice of law shall only apply to a consumer if no
mandatory statutory provisions of the country in which he has his place of residence or habitual place of residence are restricted.
13.4 The respective registered office of PMS is the place of performance. Insofar as the contractual partner is a business person
within the meaning of the German Commercial Code (Handelsgesetzbuch), a corporate body under public law or special fund under
public law, the exclusive jurisdictional venue for all disputes arising directly or indirectly from the contractual relationship (including
legal proceedings involving cheques, bills of exchange and documents) is agreed to be the respective registered office of PMS. This
applies also for judicial reminder procedures as well as for persons with no general jurisdictional venue in Germany, as well as for
persons who have changed their place of residence or habitual place of residence to abroad after the conclusion of the agreement
or whose place of residence or habitual place of residence is unknown at the time of the commencement of an action. PMS is also
entitled to institute litigation at the statutory jurisdictional venue.
13.5 Any verbal ancillary agreements are invalid. Any amendments and additions to this agreement, including this text form clause,
shall be marked as such and shall require the text form to take effect. Verbal subsidiary agreements shall only apply if they have
been confirmed in writing or in text form.
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13.6 If any provisions of these TC shall be or become ineffective or inexecutable, then this shall not affect the validity of the
remaining provisions of these TC or the contract with PMS. The same applies as soon as it should transpire that these TC contain a
regulatory gap.
Terms and Conditions for the Provision of Services to Physicians
of
Personal MedSystems GmbH
Hansaallee 154
D-60320 Frankfurt am Main
Germany
As of: 17st February 2015
The following terms and conditions apply for the provision of services by Personal MedSystems GmbH (hereinafter referred to as
“PMS”) vis-à-vis the patient (hereinafter referred to as the “Client” or “Clients”) of the participating physician (hereinafter referred
to as the “Physician”) in the relationship between the Physician and PMS:
1. Area of Application, Conclusion of Contract, Services provided by PMS
1.1 PMS shall provide the contractual services exclusively on the basis of these General Terms & Conditions (hereinafter referred to
as “TC”) which, in individual cases, may be supplemented or modified by specific descriptions of services. The Physician’s General
Terms & Conditions shall not apply to our contracts, even if PMS does not expressly contradict them. Insofar as the Physician’s
General Terms & Conditions are not concordant with the General Terms & Conditions below, the Physician is obliged to expressly
notify PMS in writing and in good time prior to concluding the contract that he does not accept PMS’s General Terms & Conditions.
If no such reference is made, then the Physician shall refrain from asserting his conflicting General Terms & Conditions.
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1.2 All offers made by PMS are non-binding, unless expressly agreed otherwise in the offer. Conclusions of contract and other
agreements only become binding upon the acceptance of PMS’s offer by the Physician after he has signed the contract and once
the copy of the contract countersigned by PMS has subsequently been returned. If no such copy of the contract countersigned by
PMS is returned, conclusions of contract and other agreements become binding upon the commencement of the service provision
owing by PMS.
1.3 PMS operates an integrated, internet-based service platform (hereinafter referred to as the “ISP”), that is, a database that
enables a Physician to view, download, save and print out (hereinafter referred to jointly as “make accessible”) the Client’s medical
data (hereinafter referred to as “medical data”).
1.4 In the event of their consent, Clients shall conclude a separate agreement with PMS (hereinafter referred to as the “Service
Agreement”) and shall register to the ISP. The terms and conditions of the Service Agreement arise out of the “General Terms &
Conditions of Personal MedSystems GmbH”, the currently valid version of which shall be given to the Physician by PMS upon
request for his attention.
1.5 PMS is not involved in any legal relationships whatsoever between the Physician and the Client. In particular, no rights or
obligations of the Physician arise out of the Service Agreement between PMS and the Client.
1.6 The registration to and use of the ISP are free of charge for the Physician.
2. Registration
2.1 Within the framework of the Service Agreement, PMS shall be obliged to set up a user account for the Client (hereinafter
referred to as “UA”) on the ISP on which the Client can save and administer his data. Only one UA can be set up for each Client.
PMS shall make the data submitted by the Client to the UA accessible only to the registered physician selected by the Client vis-àvis PMS on the ISP. The prerequisite for this is that the Physician has in turn registered a physician’s account on the ISP.
2.2 The Physician can register via PMS’s website. A contractual relationship is established between the Physician and PMS upon
registration. Following his successful registration, PMS shall set up a Physician’s user account (hereinafter referred to as the
“Physician’s UA”) for the Physician and shall then, in accordance with the Service Agreement, make accessible the medical data
submitted to it by the Client who has consented to this data being forwarded to the Physician.
2.3 The Physician’s registration shall only be complete and effective once the Physician has submitted a copy of his valid Physician
ID or appropriate proof valid in the country in which his practice is located (hereinafter referred to jointly as “proof of identity”) to
PMS via PMS’s website. Upon the expiry of the validity of the proof of identity, PMS shall block the Physician’s UA so that none of
the Client’s data can be transmitted to the Physician. If the Physician fails to provide a valid renewed proof of identity within a
period of three months, all of his settings, data and the Physician’s UA shall be blocked by PMS. In the event of the submission of a
valid renewed proof of identity in due time, PMS shall reactivate the Physician’s UA, whereby the original settings and data shall
continue to exist.
2.4 By registering to the ISP, the Physician generally consents to offering his services to the Client on the ISP. As soon as a Client
appoints the Physician vis-à-vis PMS on the ISP the Client and the Physician will be linked without further need for confirmation.
However, this contract with PMS shall not be deemed as an obligation of the Physician to treat the Client.
3. Data Transmission, Data Protection
3.1 The medical data shall be transmitted to the Physician for inspection in accordance with his predefined prioritisation. For
example, provision can be made for a transmission to the Physician of all medical data submitted by the Client. In the basic setting,
however, the ISP shall only transmit data with “amber” and “red” results to the Physician, that is, data that appear to make it
advisable to consult a Physician. The Physician shall enter the settings in a simple menu in his Physician’s UA.
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3.2 If medical data are to be transmitted to the Physician, then the Physician shall receive an e-mail from PMS. This e-mail contains
a link which, when confirmed by the Physician, causes the medical data to be transmitted to the Physician. Alternatively, the
Physician can view the data directly in his Physician’s UA on the ISP. For this purpose, he must be logged onto his Physician’s UA.
3.3 The Physician is not obliged to activate the e-mail link or to view the Client’s data in the Physician’s UA, nor is he obliged to
react to data transmitted by PMS either at all or within a certain period of time. Equally, the Physician has no entitlement to the
transmission of data vis-à-vis PMS.
3.4 Both parties shall make sure that the applicable legal requirements concerning the protection of personal data are guaranteed.
In addition, the parties agree that the Physician’s statutory obligations to observe professional secrecy shall not be affected by the
contract with PMS and shall continue to exist accordingly. For the rest – insofar as their content is relevant in the relationship
between the Physician and PMS – the “Privacy Policy” (retrievable at “www.cardiosecur.com”) shall apply, including the Physician’s
declaration of consent contained therein, which constitutes an important part of the agreement between the Client and PMS.
4. Liability
The following provisions shall apply to PMS’s liability as well as to its liability for its employees, vicarious agents and executing aides
– for whatever legal reasons:
4.1 Since PMS provides its services to the Physician free of charge in accordance with these General Terms & Conditions, PMS shall
be liable without limitation to the Physician in the event of gross culpability and, with regard to liability for defects, in the event of
malicious conduct. In the event of gross negligence, however, liability shall be limited to compensation for typically foreseeable
damage. Otherwise PMS shall not be liable.
4.2 PMS shall be liable for cases which are impossible from the outset only if the impediment to performance was known to it or if
its lack of knowledge arose from gross negligence.
4.3 The period of limitation for claims for damages against PMS shall be one year, starting from the beginning of the statutory
limitation period, unless the damage was caused intentionally.
4.4 The liability limitations stated above shall not apply in the event of the loss of life, physical injury and damage to health, for a
defect after assumption of a guarantee for the quality of the product, or for maliciously concealed defects. Liability under the
Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
4.5 PMS shall only be responsible for third-party content on its website and on the ISP
a) if PMS is aware of the unlawful acts or the information and, in the event of claims for damages, is also aware of the facts or
circumstances from which the unlawful act or the information became apparent and
b) if PMS did not take prompt action to remove the information or to block access to it the moment PMS became aware of it.
4.6 PMS expressly dissociates itself from the content of all sites to which direct or indirect references (so-called “links”) are made
from PMS’s website and their offerings; PMS shall assume no responsibility or liability whatsoever for such content. The providers
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of the respective sites are responsible for the content of these sites. The same applies to all content of sites portrayed in so-called
“frames” below a navigation bar within PMS’s website and its offerings.
4.7 If damage claims are raised, then they must be asserted by way of an action within 3 months of their written rejection by PMS.
Any later assertion shall be ruled out unless independent proceedings for the taking of evidence have been initiated within the time
limit.
5. Contract Period, Termination
5.1 Either party may terminate the whole agreement or may execute a termination in relation to one or more Clients at any time to
the end of a calendar month with two weeks’ notice. However, the terminating party must immediately notify the Client(s) affected
by the termination at least in text form prior to the termination becoming effective.
5.2 The contractual relationship between the Physician and PMS concerning the respective Client shall end automatically as soon as
the Service Agreement has ended or as soon as the Client declares that he no longer wishes to make use of the Physician’s care
within the ISP.
5.3 For the rest, the contractual parties’ right to terminate for good cause remains unaffected.
5.4 Unless expressly agreed otherwise, all terminations must be made in writing (or in text form), whereby the signed declaration
of termination must be submitted by fax or by e-mail (as a scanned document, e.g. PDF) to abide by text form.
6. Final Provisions
6.1 Subject to deviating provisions in these TC, the Physician may not transfer any rights granted under this contract or the contract
as a whole to third parties unless PMS grants its express written consent to this. However, PMS is permitted to transfer this
contract to a company with which it is affiliated (§ 15 of the German Stock Companies Act (AktG)).
6.2 Letters of intent may be given by either contractual party in electronic form and shall thus be deemed as having been given in
writing, provided there is no statutory requirement of the written form or the present TC exclude the electronic form.
6.3 The registered office of PMS is the place of performance. The exclusive jurisdictional venue for all disputes arising directly or
indirectly from the contractual relationship (including legal proceedings involving cheques, bills of exchange and documents) is
agreed to be the registered office of PMS. This applies also for judicial reminder procedures as well as for persons with no general
jurisdictional venue in Germany, as well as for persons who have changed their place of residence or habitual place of residence to
abroad after the conclusion of the agreement or whose place of residence or habitual place of residence is unknown at the time of
the commencement of an action. PMS is also entitled to institute litigation at the statutory jurisdictional venue.
6.4 This contract shall be governed exclusively by German law. Application of the “Uniform Law on the International Sale of Goods”
and the “Uniform Law on the Formation of Contracts for the International Sale of Goods” and the “United Nations Convention on
Contracts of International Sale of Goods” is ruled out. This choice of law shall only apply to a consumer if no mandatory statutory
provisions of the country in which he has his place of residence or habitual place of residence are restricted.
6.5 Any verbal ancillary agreements are invalid. Any amendments and additions to this agreement, including this text form clause,
shall be marked as such and shall require the text form to take effect. Verbal subsidiary agreements shall only apply if they have
been confirmed in writing or in text form.
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6.6 If any provisions of these TC shall be or become ineffective or inexecutable, then this shall not affect the validity of the
remaining provisions of these TC or the contract with PMS. The same applies as soon as it should transpire that these TC contain a
gap.
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