Terms of Use and General Terms and Conditions (AGB) of samedi GmbH

Status: 9th July 2018

Last updated 25.05.2018.

By registering at samedi® (samedi.de or samedi.cc including all associated country and sub domains) or signing the samedi® order form, you agree to these terms of use, to the general terms and conditions. Your consent shall be confirmed (i) by signing the hard copy of the order form or (ii) by clicking on the online order form.

1 Scope of application

1.1
These terms of use and general terms and conditions are applicable to the use of the web software samedi® and the associated customer user account of samedi GmbH (hereinafter referred to as “samedi”) – via (a) the internet platform samedi.de or samedi.cc (including all other associated domains of samedi, hereinafter referred to as “platform”), (b) other web based platforms (e.g. KV Safenet or telematics infrastructures) or (c) an installed solution (Software-on-premise) on the customer's premises – for all the corresponding services offered by samedi – with the exception of the patient account, which is governed by its own terms of use and general terms and conditions.
1.2
As customers of the platform, natural and legal persons may open a “customer user account” as healthcare providers. The principles for this are regulated by the terms of use and the general terms and conditions that are provided in this document as well as by those in the separate product and service descriptions with price list, which shall also be agreed upon at the conclusion of the contract.
Patients can open a personal patient account as platform users. The principles for this are regulated in the terms of use and general terms and conditions for patients.</dd>
1.3
Customers' conditions that differ or conflict with these terms of use and general terms and conditions shall not become part of this contract, unless samedi has expressly agreed to them in writing.
1.4
Special conditions may be agreed upon for products and services of third parties that are offered via samedi®, these special conditions shall then have precedence with respect to these general terms and conditions.
1.5
samedi reserves the right to modify these general terms and conditions at any time and without giving reasons. The user will be informed of the modified conditions via email in a timely manner (one month prior to them coming into effect) in writing or by an email sent to its samedi mailbox. If the user does not object within 14 days of receiving the modification announcement via mail (samedi GmbH, Hessische Str. 11, 10115 Berlin, Germany), Fax (+49 (0)30 212307079) or email (agb@samedi.de), the modification request of samedi is deemed accepted by the customer and regulates the future contractual relationship between customer and samedi. samedi will inform the customer separately about the significance of the 14-day term in the announcement of the modification request. If the user objects within the term in adequate form, samedi has a right to terminate the contract without notice for the duration of two months. samedi will inform the customer separately about this right of termination in the same letter.

2 Services provided by samedi

2.1
Service provided by samedi is the provision of the web software samedi®, which is accessible via (a) the internet platform samedi.de or samedi.cc (or other domains), (b) other web-based platforms or (c) as an installed solution (software-on-premise) on the customer's premises with the personal customer user account (Log-In). This service is offered to organisations and companies who are mainly, but not exclusively, service providers from the health sector (e.g. clinics, doctors, dentists, doctors' networks, alternative practitioners, therapists, service providers, health insurance providers, other insurance providers, managed care organisations) for their own online data processing.
2.2
The system requirements for samedi via (a) the internet platform samedi.de, samedi.com, samedi.cc and other domains, (b) other web-based platforms or (c) as an installed solution are set out in the current product and price list. The hardware, internet connection, as well as the web browser are not included in the service scope of samedi. The service can be accessed with a user name and password and/or with the samedi ® certificate, if desired. For the options (a) and (b) all data storage and data communication run via external servers commissioned by samedi. For option (c) this runs via on the customer's servers.
2.3
samedi provides the customer with an application for carrying out its own online data processing via the customer user account. The individual services samedi are summarised in the categories “products” (i.e. the basic packages of the customer user account that are required), “add-ons” (i.e. additional functions), and “services” in so-called service packages and are offered to the customers as such. The service products and applications currently available to customers are included in the latest product/service description and price list.
2.4
Customers can connect with one another via the web software, communicate securely with each other and coordinate work and patient procedures. samedi can use the web software platform to display suggestions and recommendations to its customers for additional networking opportunities with each other.
2.5
The customer can receive patient files, in part or in full, for viewing from its patients who are also users of the patient user account at samedi (see the general terms and conditions for patients). It can also receive additional information for scheduling appointments or communicate via samedi® message or video consultation. It should be noted that it is the user (patient) itself who decides whether or not it wish to save information in the samedi® application of the patient user account and which data to save. Furthermore, it is the patient's decision which information it make available and who has access to it. samedi has no influence on the content and disclosure of the data. Viewing the patient file or having a video consultation can therefore not replace an examination or direct contact between the medical service provider and patients. It can only serve as support for the anamnesis and diagnostic procedures.
2.6
samedi is authorised to employ professional and reliable service providers for the fulfilment of the contract, including when handling customer data. samedi uses vicarious agents (that are listed for the customer under the link below) to operate the servers and special additional services (e.g. payment or SMS providers): www.samedi.de/subunternehmer). These are obligated by samedi to observe all necessary safety and protection measures to an equal extent as samedi. The vicarious agents are also allowed to modify the status of technology and the availability control according to technical and economic aspects on a corresponding level of quality. samedi is also allowed to exchange the vicarious agents under these premises. However, samedi remains responsible for the adherence to regulations under data protection law towards the customer. The employed service providers are obligated and correspondingly controlled regarding the adherence to these regulations under data protection law. They will only become active on a contractual basis and by instruction of samedi. They may not and will not view the personal health data of the customer.

3 Contract conclusion

3.1
The completed order form, be it in paper or electronic form, constitutes the offer of the customer for contract conclusion. The contract is concluded with the acceptance of samedi.
a)
For the application, the customer must first enter the basic data on the order forms provided for this purpose on the websites or in paper form. In case of a legal person, at least one natural person must be given as the authorised representative (incl. email address) as well as the details of the associated natural persons, if applicable, (e.g. service providers such as doctors, dentists, alternative practitioners, therapists) including their email addresses.

By clicking or ticking the check boxes, the customer accepts the declarations which are directly connected to these. Thus, it must declare its consent to these general terms and conditions, to the relevant valid data privacy statement and to the product and service-specific regulations that are given on the registration form (if applicable) as well as to the corresponding (valid) price list. The order is then submitted by clicking on the button and/or sent to samedi.
b)
The customer shall receive confirmation of registration via email to the email address provided by the customer. The authorisation for opening a customer user account at samedi must be validated by samedi prior to customer user account being activated. Before the customer account can be used on the public access portal (e.g. doctor search), the customer must provide a suitable document recognised under public law (e.g. for doctors copies of its licence to practice medicine or the life-long doctor identifier number (LANr.)) as identification as a doctor, alternative practitioner or therapist. This verification shall be sent to samedi promptly and at the latest after the request made in the registration confirmation (info@ samedi.de, via fax: +49 (0)30/212307079, samedi GmbH, Hessische Str. 11, 10115 Berlin, Germany). If there are substantiated doubts concerning the authenticity of the information provided and the activity of the customer as a service provider in the health sector, samedi is authorised to request further documents from the customer as proof, for example, for doctors the licence to practice medicine certified by a public notary. samedi will send the activation to the customer via email to the address provided by the customer only after the requested documents have been presented and positively verified.
c)
The contract commences on the date stated in the registration confirmation.
d)
The customer shall receive the quantity of products and add-ons in the customer user account that is stated in the order form. For identification purposes, a separate email address is required for each of the natural persons stated (practitioners or further team members) who are associated with the customer and receive an own access (user name and password) to the customer user accounts.
e)
If the customer ordered a service against payment to configure the customer user account through samedi (by checking the box in the order form), a questionnaire for the configuration or requirement questions will electronically be sent to them directly with the order confirmation. The questionnaire or the questions shall be answered by the customer and returned to samedi in electronic or paper form by the date stated in the email. samedi will configure the customer user account based on the customer's answers. If the questions are not answered on time by the customer and this causes a delay in the completion of configuration, this does not authorise the customer to delay the confirmed contract start date. samedi carries out the configuration according to the customer's specifications. samedi may also contribute to the set-up and structuring of the configuration (for example as an additional on-site support service). samedi shall not be liable for the accuracy of the configuration of the work processes in scheduling, form entry or file usage (e.g. if, due to the settings, not enough appointments are booked for a certain service) which were specified by the customer and configured by samedi. As part of the configuration service samedi offers an online check so that the customer can review the accuracy and the desired structure of the configuration. The customer shall be given the opportunity to review the entries and to determine whether its own specifications that are saved in the software settings fit into the actual process. After hand-over and the finalisation of the configuration, the customer shall manage its user account independently and shall be able to change the configuration themselves at any time. After configuration has been finalised, samedi will no longer have access to the user account. Furthermore, samedi can be requested to provide configuration support. In this case the customer is to release the configuration access in conformity with data protection requirements, in order for samedi to adjust the configuration according to the customer’s instructions and specification in exchange for a fee.
f)
The customer may commission an optimisation analysis as a consulting service from samedi in order to receive recommendations for work processes, procedure and configuration in connection with the web software samedi. samedi shall provide the contracted services with due diligence as well as with due consideration of the state of technology at the time of contract conclusion. samedi shall employ staff that is adequately qualified to fulfil each of the orders. The customer will provide samedi with all the information that samedi requires in order to execute the commission according to the contract in a timely manner. samedi is not obliged to review the quality or accuracy of contribution services of the principal or the accuracy or completeness of the information provided by the principal. The result of the optimisation analysis (consultation) will be saved in writing and serves only as a suggestion for implementation by the customer. The customer decides whether or not it wishes to implement this suggestion or deviations and therefore samedi is not liable for the consequences of it being implemented.
3.2
Employees of samedi are not authorised to make additional verbal agreements or promises that exceed the content of the electronically or physically transmitted order and its acceptance by samedi.

Responsibility of the customer – Safety recommendation of samedi

4.1
Assuming a fake identity is prohibited.
4.2
The customer and its authorised representatives must protect its access data (password, user name) carefully and protect them like valuables against unauthorised access by third parties. The customer is obligated to replace the password issued by samedi with a personally selected password after the very first login. The customer is strongly recommended to change the passwords used frequently, to use an updated Antivirus, Antispyware and Firewall software and to only enter personal access data directly via the official website of samedi®. Due to the special (client-based) encrypting architecture of samedi® because of the strict data protection regulations in the medical sector, samedi® cannot restore the data in the user accounts and the user accesses to the user accounts. Therefore, samedi offers the customer a “Master User Account”, that only serves to administer settings (e.g. to manage and create new user accesses). This must be kept in a secure place by the customer as emergency access.
4.3
The customer agrees not to upload any illegal content onto the systems of samedi® or to make it available to third parties for example on forums, chat rooms, or via email or spam. Violations of the usage restrictions of this contract entitle samedi to enforce the appropriate remedial actions including unilateral termination of services. In this case, the customer will be promptly informed about the type, duration and extent of the blocking of its account.
4.4
The customer may not modify or remove copyright or other ownership right indications, logos, brands etc. on service components, nor have these modified or removed by third parties.
4.5
The customer is responsible for the lawful use of the customer user account. The customer must ensure that the customer user account is not used for purposes that violate official regulations or requirements, or that data that violates official regulations or requirements is created and/or saved in the customer user account.
4.6
By filling out the relevant forms in the customer user account, the customer agrees to adhere to the applicable laws and legal regulations such as the professional code for physicians, competition law and, in particular, the German Law on advertising for health-related products and services. This means laudatory, misleading or comparable advertising is prohibited. This applies, in particular, when filling out the forms for the public site of the internet portal of samedi®. The customer shall ensure that the statements made in the contract conclusion and other statements relevant to the contract are complete and correct and the regulations according to Section 27 of the MBO Ärzte are adhered to. samedi is authorised to block the customer user account immediately in case of violations. In this case, the customer will be promptly informed about the account being blocked.
4.7
Completeness, accuracy and currentness of the data entered by the customer influences the value of the services of this contract. Customers erase, modify and conceal data relevant to treatment at their own risk.
4.8
The customer is not authorised to examine the functionality of the software by reverse-engineering, to decompile it, to dissemble it into its parts and/or to use it for the creation of its own software programs.
4.9
If the customer culpably violates one of the above conditions, it is obligated to compensate samedi for the damages incurred and release any compensation claims from third parties.

5 Delivery, payment modalities

5.1
Due dates require the written agreement of samedi in order to be considered binding. Otherwise due dates shall only be considered as non-binding scheduled dates. samedi is not responsible for service interruptions due to Acts of God. If samedi is hindered in fulfilling the contract without culpability, the delivery and service deadlines shall be extended for the duration of the hindrance and for an adequate start-up period after the end of the hindrance has ended. samedi will inform the customer of the hindrance.
5.2
All customer reminders must be made in writing (by mail to samedi GmbH, Rigaer Str. 44, 10247 Berlin, Germany or by email to support@samedi.de). Extensions of period set by the customer shall be at least three calendar days.
5.3
One-time and repeating customer payment obligations become due immediately in advance as at contract conclusion for the duration of the contract of each payment term unless samedi expressly determines a later maturity date in the order confirmation. The payments are due annually in advance. For an additional fee, the customer has the option of changing the payment term in advance.
5.4
The customer agrees to its bank account, as indicated in the registration form, being debited by direct debit. If the customer does not agree to the direct debit procedure, samedi is entitled to collect an additional fee for bank transfer or for any other electronic means of payment used.
5.5
Upon lack of a payment to samedi, the customer falls into arrears without notice at the latest 30 calendar days after maturity date or receiving an invoice. If the customer is a consumer, the invoice or payment notice shall make special reference to these consequences. If the customer is not a consumer, the receipt of the service removes remaining doubts over the date of receipt of the invoice or payment notice.
5.6
If a customer falls into arrears, the legally given default interest points over the legal base interest rate become due on the owed amount per month, as of the date of the notice of payment (meaning 30 calendar days after maturity). If the complete amount incl. delay interest has still not been paid after 60 calendar days of maturity, samedi reserves the right to deactivate the customer user account. The customer shall be informed, using the indicated email address, that it has a further 30 calendar days to export its appointment and form data from its customer user account itself as a csv file according to the available possibilities. To do this, the customer shall contact samedi to reactivate the account for this purpose. After the 90 calendar days after maturity without payment of the due amount, samedi can cancel the contract without further notice and irrevocably delete the entire user customer user account, without the data being available for recovery.
5.7
If a customer with a free access (for example the samedi® Light user account) has not used its user account for over 2 years, meaning its last login was more than 2 years ago, samedi can cancel the contract without notice via the email address saved by the customer. The customer then has another 30 calendar days to export its appointment and form data from its customer user account themselves as a csv file according to the possibilities available. After the 30 calendar days samedi may irrevocably delete the entire customer user account without the data being retrievable.
5.8
If the customer is resident abroad or if there are reasons to doubt timely payment by the customer, samedi can ask for full payment in advance. If substantiated doubt concerning the payment ability of the customer arises after contract conclusion, samedi may withdraw the stated payment terms and demand immediate payment.
5.9
The customer may not surrender its demands to third parties without written agreement of samedi; samedi will not deny the agreement without reason.

6 Prices / Price changes

6.1
The prices are listed in the respectively valid price list.
6.2
Price changes that affect the customer shall be announced by samedi in a timely manner so that the customer can terminate the contractual relationship while adhering to the agreed cancellation term prior to the application of the new prices. Insofar as they do not enforce this right and they continue to use the services of samedi after the effective date of the price change, the price change becomes binding for both contract partners. The calculation will be done based on the price change.

7 Warranty and liability

samedi provides the services set out in the provisions of paragraph 2 and confirms that its services do not conflict with any rights of third parties. However, samedi expressly assumes no liability for the availability of the internet pages for each access time desired by the customer.</dd>
7.1
samedi shall provide the services set out in the provisions of paragraph 2 and confirms that its services do not conflict with any rights of third parties. However, samedi expressly assumes no liability for the availability of the internet pages for each access time desired by the customer.
7.2
samedi shall not be liable for the product and performance specifications that exceed the specifications agreed upon. This also applies to public statements, advertising or representations in any form, unless samedi has expressly confirmed in writing the specifications outlined in such a way as being part of the service of the service package selected by the customer.
7.3
samedi only provides the technical requisites for the transfer and administration of information and is not part of the contractual relationship between the customers of the samedi® customer user account nor to their customers (patients or users of the patient user account), neither as mediator nor party or representative of another party.
7.4
The customer or user of the patient user account is solely responsible for the accuracy of the data placed on the platform (e.g. for making appointments, the public profile, the documentation data or calculation forms). samedi provides the web software; the customer is solely responsible for the content and the data. samedi is, in particular, not liable for the accuracy of appointments made, the public profile or the form and calculation content nor the accuracy of the data entered by the customer. The identity of the users of the patient account cannot be checked by samedi.
7.5
The customer releases samedi of third party compensation claims that may arise because of data that the customer has entered, erased, modified or failed to disclose. samedi issues warranty by attempting to eliminate the causes of the fault indicated by the customer promptly, and by giving the customer information about how to prevent faults in the future. samedi is entitled to two attempts to rectify the same defect.
7.6
If the second attempt at remedial action within the stipulated period fails or if errors are also evident in the replacement provided at the time of provision, the customer is entitled to immediately terminate the contract. The notice of termination is to be declared in writing.
7.7
If third parties allege to the customer that the contractual services of samedi conflict with the rights of third parties, the customer shall inform samedi immediately in writing and in detail of the allegations made and of the identity of the third party. The customer hereby authorises samedi to enter a dispute with the third party. The customer may only acknowledge such claims with samedi’s approval. Otherwise, the customer shall be obliged to remedy the damage incurred by samedi resulting from the acknowledgement of the claims.
7.8
samedi is not liable for damages that are caused by software originating with samedi. The user expressly acknowledges this liability disclaimer with the usage of the software on its computer. The web software is tried and tested under representative conditions of use. Nevertheless in spite of current technology, errors in the running or results are not completely to be excluded with special combinations from data or functions.
7.9
The liability disclaimer set out in the preceding paragraph is not applicable to:
a)
damages caused intentionally or because of gross negligence by samedi, its legal representatives or auxiliary persons;
b)
for damage to lives, bodies and health, which are based on a negligent or deliberate obligation,
c)
damages pursuant to product liability law - however samedi is not subject to the German Medicinal Devices Act, as samedi does not make independent therapy or diagnosis recommendations, but only works on the basis of the data entered by the customer itself.
d)
damages against which the warranty or guaranteed features should foreseeably protect, insofar as samedi has issued a warranty or guaranteed a feature.
7.10
samedi offers access to other providers’ services via the customer user account. samedi selects these providers carefully, but does not have the possibility of consistent control of their services, in particular websites and the services made available there. Therefore, samedi is not responsible or liable for their availability or content. This is also applicable to the links on pages of the cooperation partners of samedi.
7.11
It is expressly stated that samedi does not assume liability for damages that occur to the customer or to third parties as a consequence of the service being unavailable or not available in the offered form on time or permanently due to technical problems (such as the unavailability of internet or computer problems/damages) or other events not under the influence of samedi. Liability for lost profit due to this reason is exempt.
7.12
With the exception of claims according to paragraph 7.9, all claims by the user for compensation, regardless for which legal reason, or compensation of futile expenses become time-barred within one year. The term commences when the user first becomes knowledge of the damage. The statute of limitation of one year applies to all further claims due to violations of obligations such as non-fulfilment, delay, culpability during contract initiation and breaches of secondary duties.
8.1
Within the scope of this contract, the customer shall receive the right of use for the web software. This right cannot be transferred and is limited to the duration of this contract, insofar as no product or service-specific licensing conditions dictate otherwise.
8.2
In providing services to the customer, samedi is entitled to all property, intellectual and commercial rights resulting from these services. samedi grants the customer the right to use such results for the purpose of this contract which is limited to the duration of the contract, non-exclusive and not transferable.
8.3
The content and applications generated electronically by the customer, samedi or other users and partners of samedi in association with the contract within the service range of samedi which are freely available and not limited to a single customer may not be reproduced, modified, deleted, disclosed to third parties and published outside the service offer of samedi by the customer, insofar as samedi and the owner of the rights did not expressly agree to this in advance in writing.

9 Duration and Termination

9.1
The contractual relationship is concluded for the duration of one year as of contract conclusion with reservation of a separate agreement, and is automatically extended in each case continuously for a further year if none of the parties declares termination within the legal term in writing. Except when otherwise stipulated, termination with notice is possible by adherence of a three month term to the end of the contract duration.
9.2
The duration of the free test version is limited by the period defined in advance by samedi (e.g., 30 days or 2 weeks). The regulations of the general terms and conditions also apply to the use of the test version and are accepted by the customer by its usage.
9.3
Both parties are authorised to terminate without notice due to important reason, in particular in case of an essential contractual violation, in which the continuation of the contract becomes unreasonable for one of the parties. An important reason is given for samedi in particular if the customer (i) intentionally provided false contact data, (ii) intentionally provided false or invalid email addresses, (iii) intentionally provided false bank account information, (iv) did not fulfil its payment obligation in a timely manner, (v) surrendered its user account to a third party or (vi) allowed the use of a user account by unauthorised third parties.
9.4
In case of a significant contract violation by samedi the customer is authorised to terminate the contract without notice pursuant to paragraph 11.3, if it has informed samedi of the major violation in writing with evidence and if samedi did not eliminate the significant contract violation within three days of receiving the information. If the customer terminates for just cause and without notice, samedi will return the amount paid in advance in part to the time of the effectiveness of the termination notice.
9.5
The termination is to be declared in writing by mail to samedi GmbH, Hessische Str. 11, 10115 Berlin, Germany, by fax to +49 (0)30/212307079 or by e-mail to info@samedi.de).

10 Miscellaneous

10.1
Requirement of written form

Modifications or supplementations of the contract are only effective if they are agreed upon in writing. This also applies to a waiver of the requirement for written form.

Deviating from the above regulation, formlessly made modifications or supplementations are also effective if they are individual agreements in the meaning of Section 305 b BGB.
10.2
Applicable law, Place of jurisdiction

The entire contractual relationship is subject exclusively to German law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Exclusive place of jurisdiction for all disputes from and in connection with this contract is the location of samedi, insofar as the customer is a merchant or has its residence outside the region of the Federal Republic of Germany.
An offer of samedi GmbH
Rigaer Str. 44
10247 Berlin
Germany

Telefon: +49 (0)30 21230707-0
Fax: +49 (0)30 21230707-9
EMail: info@samedi.de
Website: www.samedi.de

Represented by: Prof. Dr. Alexander Alscher, Katrin Keller
Commercial register number: Amtsgericht Berlin Charlottenburg/HRB: 112862 USt-IdNr: DE260137799
VAT No.: Center for Regional Tax Office III - Sales Tax Number. DE260137799

Terms of Use and General Terms and Conditions (AGB) of samedi GmbH for healthcare providers (valid until July 2018)

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