These general terms and conditions of use (“Terms”) apply to all services provided by Climedo Health GmbH, Schillerstraße 23a, 80336 Munich (“Climedo”) as contractor to the company named as ordering party (“Client”). THE TERMS OF USE SHALL BECOME BINDING FOR THE CLIENT UPON CONCLUSION OF THE RELEVANT ORDER/CONTRACT. CLIENT AND CLIMEDO ARE ALSO REFERRED TO HEREIN INDIVIDUALLY AS “PARTY” OR COLLECTIVELY AS “THE PARTIES”.
These Terms and Conditions of use were translated from the German version for your convenience. The German version is binding/ shall prevail in any conflict scenarios.
(1)“Administrator(s)” refers to those users of the application who are authorized to create additional user accounts. Administrators may only be persons from the Client’s own company or from the company of trustworthy partners carefully selected by the Client in accordance with these Terms of Use.
(2)“Aggregated Data” means statistical information related to the use of the application for internal as well as Client’s reporting purposes, but only in aggregated or anonymized form that does not identify the Client or any users.
(3)“Application” means the “Climedo Software” application developed by Climedo, which can be downloaded or used online by the Client at www.climedo.de, its subpages and other domains.
(4)“Client Data” means all data, information or materials that the Client processes or transmits via the application or enters or uploads to the application, with the exception of content and Climedo technologies.
(5)“Climedo Technologies“means all technologies belonging to Climedo (including software, products, processes, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical materials or information) that Climedo provides or makes available to the Client in the provision of the application.
(6)“Data Protection Laws” means the General Data Protection Regulation (GDPR) and all applicable laws of the member states of the EU for the transposition and implementation of the GDPR into national law or other applicable legal regulations of other countries on data protection, depending on which of these laws is or are applicable to the contractual relationship between the parties.
(7)“Documentation” refers to the instructions for use of the application which Climedo provides to the Client in the agreed form, insofar as this is the subject of an order/contract.
(8)“Order/contract” means an agreement between the parties that obliges Climedo to provide certain services and the Client to pay. Unless expressly stated otherwise in an order/contract, in the event of contradictions, the provisions of an order/contract shall take precedence over these Terms of Use.
(9)“Intellectual Property” means all industrial property rights, applications for industrial property rights, copyrights and know-how of the parties as well as all other intellectual property rights which one of the parties may claim for itself under any legal system whatsoever.
(10)“Planned System Restrictions” means maintenance work conducted by Climedo that may lead to a restriction or failure of the systems and whose necessity, start and expected end are known to Climedo in advance.
(11)“Content” means the information and documents already contained in the application or made available to the Client as part of the use of the application.
(12)“Emergency System Restrictions” means work by Climedo that may lead to a restriction or failure of the systems and whose necessity, start and/or expected end are not known to Climedo in advance.
(13)“User” refers to simple users of the application who are not administrators. Users may include, for example, employees of the Client, but also external partners, consultants, contractors and representatives as well as their employees.
(14)“Open Source Software” means software available free of charge to which license terms or other usage agreements (“Open Source Licenses”) apply, according to which, in the event of processing and/or distribution of this software, there is an obligation (a) to make the source code of this software or a processing of this software available to third parties, or (b) to allow third parties to further process this software or a processing of this software, or (c) notices and/or information on the relevant Open Source Licenses must be provided. The following non-exhaustive list contains open-source licenses as defined above: (a) the Lesser General Public License, Version 2.0, (b) the Apache License, Version 2.0, (c) the MIT License.
(15)“Affiliate” means a company that directly or indirectly controls one of the Parties, is controlled by one of the Parties or is under common control with one of the Parties through a third company. In this context, “control” means the direct or indirect ownership or other control of more than 50% of the shares or voting rights of one of the parties or the right to control a party for other reasons.
(16)“Conclusion of Contract” means the date on which the parties make their declarations of intent to conclude a contract.
(17)“Trusted Partners” means external partners, consultants, contractors and representatives of the Client who act on behalf of the Client and who have been carefully selected by the Client in accordance with these Terms of Use, instructed in the use of the application and specifically informed of the rights and restrictions granted to the Client under these Terms of Use and the order/contract.
(18)“Confidential Information” means any information that (a) is disclosed by one party (the “Information Holder”) to the other party (the “Information Recipient”) in any form, (b) is designated as confidential or is obviously confidential due to its nature and the circumstances of disclosure. Confidential information includes, but is not limited to, the documentation, Climedo’s prices, intellectual property of the parties and the terms and conditions of these Terms of Use and any contracts entered into between the parties. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of any obligation to the information holder by the information recipient; (b) was known to the information recipient prior to its disclosure by the information holder; (c) was received from a third party without any obligation of confidentiality; or (d) was developed by the information recipient independently and without use of the information holder’s Confidential Information.
(1) Scope of Functions; Limitation of Purposes. The application enables digital recording, saving and sharing of research-specific content as described in detail in the documentation. The application may only be used for research purposes; use of the application or the content for the purpose of clinical treatment of patients is prohibited. The application creates technical conditions for the independent exchange of data and information between users. Climedo does not participate in the networking and/or communication between users. The application can be used as specified in the order/contract via www.climedo.de, its subpages and other domains as a web application or, if available, via desktop applications and mobile applications. All Client data is stored in the “online version” in the cloud (unless otherwise agreed in writing) and can therefore be used with different end devices at any time and from any location with sufficient internet access. After registration, each user receives their own profile. Each user profile contains some of Climedo’s pre-installed content, tools and features.
(2) Rights and Limitations of Use. Climedo hereby grants the Client the non-exclusive, worldwide right to use the application to the extent described below, subject to the availability stipulated in the order/contract and not transferable beyond the cases expressly stipulated in these terms of use. All rights not expressly granted to the Client are reserved by Climedo. Notwithstanding the rights under this paragraph §2, the application may only be used for the Client’s own internal business purposes. The use of the application is subject to the usage restrictions set out in the order/contract with regard to the number of managed studies, patients, centers or other parameters specified in the order/contract. Climedo reserves the right to regularly check compliance with the usage restrictions of the application. If such a review reveals that the Client and/or a trusted partner has or have disregarded usage restrictions, the Client shall make all necessary efforts to adapt the actual use of the application to the contractual usage restrictions. If and to the extent that compliance with the contractual restrictions of use cannot be achieved despite these efforts, the parties shall conclude a new contract, or contract addendum, which contains sufficient additional rights of use for the Client. Notwithstanding this, Climedo is entitled to subsequently demand an additional reasonable fee from the Client for the period of non-compliance with the contractual restrictions on use. Notwithstanding the above, Climedo reserves the right to withdraw the rights of an administrator for the application from a trusted partner in the event of serious or repeated non-compliance with the usage restrictions by that trusted partner. The Terms and Conditions of Use only take effect if the application is used in accordance with the order/contract. If the application is not used in accordance with the provisions set out in these Terms and Conditions of Use, Climedo excludes all liability.
(3) Restrictions. The Client must adhere to the intended use of the software, which can be viewed at any time in each generated instance. The Client may not and shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available the application to any third party, except as expressly permitted to the Client under these Terms and Conditions of Use or otherwise by Climedo in writing; (b) modify the application or create derivative works based on the application or infringe Climedo’s intellectual property rights in the application; (c) create internet links to the application that go beyond the patient survey links; (d) reverse engineer or otherwise access the application in order to: (i) build a competitive product or service to the application; (ii) create a product using similar ideas, features, functions or graphics of the application; or (iii) copy any ideas, features, functions or graphics of the application; (e) upload to or store in the application any infringing, obscene, threatening, defamatory or otherwise unlawful or unauthorized material; (f) upload to or store in the application any material that contains viruses, worms, trojan horses, spam or other harmful computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the application or the data contained therein, including, but not limited to, brute force attacks or denial of service attacks; (h) attempt to gain unauthorized access (by employees, business partners, etc.) to the application or the systems or network programs on which the application is operated; or (i) use the application in violation of its intended use or other applicable laws, including, but not limited to, data protection.
(4) Open Source Software. The rights of use under the above paragraphs shall not apply to the use of open-source software if the relevant open-source license grants different rights of use. In this respect, the open-source licenses alone are decisive for the scope of the rights of use granted to the Client. Climedo warrants that (a) the application does not contain any open-source software if the use of open-source software is expressly prohibited in the order/contract, (b) Climedo observes all provisions of open-source software licenses and acts in accordance with them, and (c) the Client is informed by Climedo about the open-source software and the relevant open-source software licenses.
(5) Features of External Development Partners. If external development partners offer their own applications/features via the application, which the Client can integrate into his profile, the respective development partner alone determines the price and functional scope of these applications/features. A contract for the use of these applications/features is concluded solely with the development partner. This contract may also contain rights of use and restrictions on use that deviate from these terms of use.
(6) Invitation of Additional Users; Granting of Administrator Rights to Trusted Partners. The Client shall be granted the right to additionally (a) invite other users, including users outside its own company, and (b) set up a user account as an additional administrator for trusted partners. The Client is responsible as administrator for the team created in the Client’s profile, and the Client is also responsible to Climedo in particular for the actions of all administrators of trusted partners. The Client is free to decide whom to invite and what rights to grant to the respective users or administrators in accordance with these Terms of Use. Such users or administrators may use the application to the same extent as the Client and may access it at no additional cost to the Client (subject to the restrictions set forth herein). In particular, administrators of trusted partners may invite additional users; however, the administrators of trusted partners are not authorized to set up additional user accounts for administrators outside their own company, even if this option is technically available to them. Notwithstanding the foregoing, the Client shall be responsible to Climedo for compliance with the terms and conditions and the order/contract by all users, administrators and trusted partners as if these users were contracting parties. In particular, the Client is obliged (a) to inform other users and trusted partners of the rights of use, including all restrictions on use, and (b) to impose corresponding obligations on trusted partners vis-à-vis their administrators and users invited by them, at least in text form. However, the Client is not entitled to be invited to teams other than those created by the Client or its trusted partners themselves. Climedo cannot guarantee the correct identity of the users. In particular, the Client or the trusted partner must use a professional and personalized e-mail address when inviting other users; a private or non-personalized e-mail address (contact@xxx.de or similar) is not permitted.
(7) Service and Support. A “support user” access is used exclusively for cases in which Climedo has to make changes within the instance of Clients, read out essential contract data (patient numbers, etc.), or for troubleshooting if a corresponding message has been received via the channels provided for this purpose (e.g. via e-mail). A “support user” access is included as standard in every instance upon handover to the Client in order to ensure the proper initial provision of the software. Access can be restricted by the Client at any time after delivery so that the “support user” only has read-only rights. If a change is made, the Client accepts that Climedo can no longer fully guarantee compliance with the parameters agreed in the SLA, or that Climedo may not be able to provide the agreed service and support services. This does not provide the Client with a special right to terminate the contracted services. The “support user” is subject to the same principles as any other user access (tracking of login attempts and changes made, IP address, etc. by Climedo). Climedo guarantees the confidentiality of all data viewed and not to misuse the “support user” access. No further storage or processing of the data viewed takes place.
(8) Blocking Access to the Application. Climedo may, upon notice to the Client, block the Client’s access, or that of one of its users or trusted partners, to the application if Climedo reasonably concludes that the Client’s instance of the application or a particular user account is being used in violation of §2(3) and/or §2(6) and that this is causing direct material damage to Climedo or others. In the exceptional event that Climedo blocks access to the application, Climedo will (a) use commercially reasonable efforts to limit the blocking to the affected part or user accounts of the application, (b) work with the Client to resolve the issues causing such blocking, and (c) promptly provide the blocked user or trusted partner with a new user account to access the application, as applicable. The Client acknowledges that Climedo is not liable for restricting access to the application in the circumstances described.
(1) Use of the Application. Client is (a) responsible for all activities that occur under its user accounts and for compliance with these Terms of Use and the documentation by all users and trusted partners; (b) will use commercially reasonable efforts to prevent unauthorized access to or use of the application; and (c) will use the application only in accordance with the documentation, the Terms of Use and applicable laws and governmental regulations. The Client’s responsibility under a) of this paragraph includes in particular the obligation of the Client to pay additional usage-based fees to Climedo even if these are incurred due to the actions of a trusted partner of the Client, for example because the actions of a trusted partner exceed the usage restrictions agreed with the Client with regard to the number of managed studies, patients, centers or other parameters specified in the Order.
(2) Notification of Defects. The Client shall report errors to Climedo, regardless of whether these errors are defects or not, stating the following information: (a) in which module the error occurred; (b) the work steps in the course of which the error occurred or which caused the error; (c) the description of the error by means of screenshots, logs or similar notes; (d) the date and time of the error detection; (e) indication of reproducibility (yes/no). The Client shall support Climedo in error handling, for example by transmitting test cases and/or test data, providing error logs, screen shots, etc., which Climedo requests from the Client in addition to the information provided in the error message.
(3) Responsibility for Client Data. The Client is responsible for all Client data that it or users authorized by it or its trusted partners upload to the application or otherwise process or generate therein. This also applies with regard to profile information posted by users, including profile pictures. In particular, it is the sole responsibility of the Client to ensure that Client data is collected and processed in accordance with data protection laws. In particular, Climedo does not guarantee that client data of individual users is true, fulfills a specific purpose or can serve such a purpose. Climedo does not check the accuracy of the client data.
(4) Confidentiality of Access Data. The Client is obliged to keep the access data provided to him or created by himself secret from unauthorized third parties and to keep it safe from access by unauthorized third parties, so that misuse of the access data by third parties for gaining access to the application is impossible. The personal password must be changed at regular intervals. Third parties who use the Client’s internet connection with the Client’s knowledge and consent are not authorized to change the password. In the event of misuse or loss of the password or suspicion thereof, the Client is obliged to notify Climedo immediately by e-mail to support[at]climedo.de.
(5) Compliance with Applicable Laws. Client is solely responsible for and agrees to comply with all applicable laws, regulations and other legal and regulatory requirements, however designated, relating to the use of and access to the application, including, but not limited to, laws and regulations of the EU as well as the United States and other countries regarding the (re-)export of software, technical data and information or derivatives of such software or technical data and information from other countries. Client will not permit users to access or use the application in any country under a European or U.S. embargo or in violation of European or U.S. export laws or regulations.
(6) Indemnification. Client shall indemnify Climedo and its affiliates, officers, directors, employees, attorneys and agents against all damages, losses, liabilities and costs (including attorneys’ fees and costs) arising out of (a) a claim by a third party alleging that the Client data infringes its intellectual property rights, or (b) any violation of laws and/or regulations, including but not limited to privacy laws or laws related to export controls, or (c) any unauthorized third party access to the application. In this case, however, Climedo reserves the right to block the Client’s access to the application if this is necessary to protect its own or other Clients’ legitimate interests. The rights and remedies granted to Climedo under this paragraph shall only apply if the Client has acted at least negligently, in which case they shall constitute the Client’s entire liability and Climedo’s sole and exclusive remedy in respect thereof. In the event of an indemnification obligation under this paragraph, Climedo shall: (a) promptly notify the Client in writing of any such claim; (b) grant the Client sole control of its defense and settlement of the dispute; and (c) provide the Client with all available information and reasonable assistance at the Client’s expense.
(7) General Cooperation Services. The Client shall ensure that all cooperation services necessary for the provision of the service agreed in an order/contract are provided in time, in full and free of charge to Climedo. All cooperation services to be provided by the Client are a prerequisite for Climedo’s contractual performance. If the Client does not provide this cooperation or does not provide it in time, any resulting increases in fees or postponements shall be borne by the Client. Climedo is not liable for any failure to provide the application in accordance with the agreement if this failure is due to the Client’s failure to cooperate in accordance with this paragraph. Notwithstanding this, Climedo is obliged to inform the Client in text form of the failure to provide the necessary cooperation and of the likely consequences of this failure.
(8) Contacts. The Client shall designate a contact person for the necessary arrangements under an order/contract, both for commercial and technical matters. The Client has the right to change contact persons after prior written notification to Climedo.
(9) Billing Information. The Client shall notify Climedo in writing of any change to its billing information, in particular its company or billing address and any order/contract or order/contract numbers or similar details assigned by the Client and required for order/contract processing, without delay, but no later than 30 days after the change has been made. If such notification is not made or not made within the aforementioned period, this shall be at the expense of the Client.
(10) Test Environments. The use or provision of a test environment for the respective Client is optional on the part of Climedo. The test environments are not intended for the development or adaptation of studies, therefore a transfer of the configurations of the test environment to the productive environment cannot be guaranteed. Test environments are deleted promptly after the end of their dedicated purpose (time limit, end of the study, etc.). They are used exclusively for the purpose of testing and therefore must not contain any identifying patient data. Climedo accepts no liability for the data stored in a test environment.
(1) Onboarding; Acceptance. Climedo shall make the application, alongside all documents and information required under the order/contract, available to the Client at the agreed start of performance. The Client shall then immediately carry out a user acceptance procedure. If defects are identified during the acceptance procedure, §6 shall apply accordingly.
(2) Provision of the Application; Data Backup. Climedo shall: (a) subject to the availability specified in the order/contract, provide the application in accordance with the provisions of the order/contract, the Service Level Agreement and these Terms of Use; and (b) provide services to the Client. Climedo is not obliged to back up Client data. The Client must therefore take the necessary precautions to regularly back up the data it has entered in – or generated by using – the application in an appropriate manner and to create its own backup copies to ensure that the Client data can be reconstructed if access to the application is lost. Climedo will provide appropriate support services upon request at support[at]climedo.de.
(3) Protection of Client Data. When providing services, in particular when processing personal data on behalf of the Client, Climedo will take into account the state of the art, as well as the implementation costs and the type, scope, circumstances and purposes of the data processing alongside the different probabilities of occurrence and severity of the risk for the rights and freedoms of natural persons, take appropriate technical and organizational measures to ensure a level of protection appropriate to the risk is established and maintained. These safeguards include, but are not limited to, measures which prevent destruction, loss or alteration, whether accidental or unlawful, or the unauthorized disclosure of – or access to – Client data transmitted, stored or accessed using the application or in any other way under Climedo’s influence. Climedo may access Client data: (a) to support the use of the application, to provide services or to prevent and resolve technical problems; or (b) if and to the extent that the Client expressly permits this in writing.
(4) Appointed Personnel. The personnel appointed by Climedo are not subject to the Client’s internal instructions, regardless of the place of performance. Climedo itself is responsible for these employees (including subcontractors) and their actions in accordance with the order/contract. The Client may only request the replacement of an appointed person or refuse their replacement by another person nominated by Climedo if the (further) appointment of this person is unreasonable for the Client. A reasoning for this situation must be given by the Client without undue delay.
(5) System Restrictions and Maintenance. Climedo shall announce a planned system restriction/maintenance activity in text form in good time in advance and, where possible, coordinate the start and expected end time with the Client. In the event of an unplanned system restriction/maintenance, Climedo shall notify the Client of an emergency system restriction in text form as early as possible and keep the Client informed of any restrictions on the use of the systems and the expected end of the emergency system restriction. This does not apply to system restrictions due to (natural) disasters or force majeure events.
(6) Scope of Consulting Obligations. In principle, Climedo is only obliged to advise the Client if and to the extent that advising the Client is expressly agreed in an order/contract. In particular, subject to the preceding sentence, Climedo is not obliged to examine requests for services from the Client with regard to their economic benefit for the Client or their admissibility under (data protection) law or to advise the Client in this regard. Notwithstanding this, Climedo shall inform the Client of any evident misconceptions regarding the economic benefit or the (data protection) legal admissibility of the Client’s requests for services.
(7) Important Product Information. Climedo shall inform the Client about product-related information via the e-mail address provided by the Client about updates, changes to the General Terms and Conditions of Use, any malfunctions and similar. This serves to ensure the proper operation of the system and its use. In the case of urgent bug fixes (“hotfix” versions), this communication may only take place after the corresponding version (“release”) is available. In the case of ongoing or further development (“major/minor” versions), communication takes place at least 10 days before the release of the version.
(1) Change. The Client may at any time request a change or addition to the services agreed under an order/contract which it considers necessary or useful (“change request”). Climedo shall examine the technical feasibility of a Change Request within a reasonable period of time and inform the Client of the result of this examination. If, due to the scope of a Change Request or the number of Change Requests from the Client, it is unreasonable for Climedo to examine a Change Request without separate remuneration, Climedo shall inform the Client immediately. In such a case, the parties shall conclude a contract for the review of the change request, which shall regulate the remuneration in particular.
(2) Implementation Offer. If the Change Request is technically feasible, Climedo shall submit an implementation offer to the Client for the conclusion or completion of a corresponding order/contract, which should contain at least the following information: (a) time period and milestones (if necessary) for the implementation of the Change Request, (b) estimated number of work hours for the implementation of the Change Request by Climedo, (c) effects of the implementation on the ongoing usability of the application, (d) any effects of the implementation of the Change Request on ongoing remuneration (e.g. foreseeably higher expenditure than estimated in the original offer).
(3) Implementation Order. If the Client accepts Climedo’s implementation offer for the change request, an order for the implementation of the change shall be concluded in accordance with this implementation offer or an existing order/contract shall be supplemented by an implementation order for the change request. If the Client does not accept Climedo’s implementation offer for the change request, the services under the relevant contract shall continue unchanged.
(4) Effects on Rights of Use. The implementation of a Change Request has no effect on the rights of use granted to the Client and the restrictions on use imposed on the Client in accordance with these Terms of Use, unless expressly stated otherwise in an order/contract in accordance with the preceding paragraph.
(1) Defects during Acceptance. If the Client has identified defects during the user acceptance test, but has nevertheless declared acceptance, or if the service is nevertheless deemed to have been accepted, Climedo shall rectify these defects in the context of the next or one of the following releases, in any case within a reasonable period of time without separate remuneration. If the Client has refused acceptance due to a defect that prevents acceptance, the provisions of the following paragraphs shall apply accordingly.
(2) Warranty. Climedo warrants that the application will be of the agreed quality when used as intended. If a defect becomes apparent, Climedo shall first provide supplementary performance and/or provision of the application/services. Climedo shall, at its own discretion, either rectify the defect or re-provide the application. Supplementary performance may consist in particular of the provision of patches, updates or upgrades of the application which does not contain the defect. If the subsequent performance fails, the Client may, at its discretion, reduce the remuneration or, in the case of significant defects, terminate the relevant order/contract or exercise its right of withdrawal. Supplementary performance shall only be deemed to have failed if the Client has given Climedo reasonable opportunities to provide supplementary performance in terms of number and scope and the Client cannot reasonably be expected to accept further attempts at supplementary performance by Climedo. When assessing the reasonableness of further attempts at supplementary performance, particular consideration must be given to whether Climedo has already provided or set up a workaround that significantly limits the effects of the defect.
(3) Material Defects of Title. In the event of an infringement of the intellectual property rights held by third parties for which Climedo is responsible, and if the application was provided under an order/contract, Climedo may, at its own discretion, either acquire at its own expense a right of use in favor and on behalf of the Client which is sufficient for the use agreed in the relevant order/contract or modify or re-perform the relevant service without or only with reasonable effects on its functions for the Client in such a way that no intellectual property right held by third parties is infringed.
(4) Third-party Claims. If the Client becomes aware that a third party claims that the provision and/or use of Climedo’s application infringes the intellectual property rights of said third party or another third party, the Client shall inform Climedo of this immediately. In such a case, Climedo shall, as far as possible, assume the legal defense at its own expense and attempt to reach an agreement. The Client shall support Climedo in this in an appropriate and reasonable manner. Warranty claims of the Client due to material defects of title remain unaffected by this paragraph.
(5) Limitation of Warranty. The client acknowledges that Climedo cannot control the transmission of data via communication facilities, in particular the Internet. Having said this, the parties agree that Climedo is not obliged to provide a warranty to the extent that a limitation of performance is due to errors in the communication equipment. Furthermore, the client shall have no warranty claims if the use of the application is impaired by improper operation on the part of the client or third parties authorized by the client (in particular trusted partners). According to the preceding sentence, warranty claims are excluded in particular in the event of impairments caused by the application being used under operating conditions that do not comply with the instructions and recommendations for the use of the hardware and software environment provided in the documentation, manuals or other information provided by Climedo. Such downtimes shall not be counted towards the service level specified in the order.
(6) Compensation or Reimbursement of Expenses Due to Defects. Section 7 of these Terms of Use shall apply to the assertion of claims for damages or reimbursement of expenses due to defects.
(7) Statute of Limitations. Warranty claims of the Client shall become time-barred within twelve (12) months, except in cases of intentional or grossly negligent action, injury to life, body or health, breach of a guarantee promise, fraudulent concealment of a defect and in cases of the Product Liability Act.
(8) Apparent Defect. If it turns out that a defect reported by the Client does not actually exist or is not attributable to the application (“apparent defect”), the Client shall pay Climedo reasonable compensation for the expenses incurred by Climedo in the course of error analysis and other investigational activities, unless the Client was unable to recognize the existence of such an apparent defect even when exercising the necessary caution.
(1) Contents. Climedo assumes no responsibility for the content entered by users or for content on linked external websites. In particular, Climedo does not guarantee that this content is true, fulfills a specific purpose or can serve such a purpose. Climedo does not check the content for accuracy, viruses, or processability.
(2) User Identity. It is not technically possible for Climedo to determine with certainty whether a user registered on Climedo actually has the identity that he or she claims to have. Climedo cannot guarantee the correct identity of the user.
(3) User Behavior. If users notice or suspect a use of Climedo that violates either the law or the concluded contract, they are obliged to report this immediately by e-mail to support[at]climedo.de. Climedo does not check user behavior, but solely monitors login attempts (browser version, IP address, etc.) for security reasons.
(4) Misuse. If Clients or their users use the Climedo software outside of its intended use, Climedo’s liability and any warranty claims of the Client shall lapse. Climedo is not liable for any actions conducted outside the intended use of their software.
(5) Use of Data Records. For any further use of the data records, it is clarified that Climedo holds all rights to any database work within the meaning of Section 4 (2) UrhG and is the database producer pursuant to Section 87a (2) UrhG.
(6) Interfaces. As a basic rule, Climedo will counteract interface failures in the best possible way by cooperating with appropriate partners. Should a breach of data security arise from the limitations of the interface, Climedo will support the responsible party (data controller) to the best of its ability to clarify the situation without undue delay. If an interface with partners is established as part of the cooperation at the Client’s request, Climedo is not responsible for the quality of the transmitted data or the associated restrictions on the part of the users. Climedo accepts no liability whatsoever if the availability of the connected system/database is limited or temporarily impossible, or if it changes in the course of the collaboration due to adjustments made by partners. Climedo has no direct influence on the functionality and further development of these interfaces by partners. If the functionality or availability of the use of that interface is impaired, Climedo will respond in a timely manner by technically adjusting the interface together with cooperation partners, which clearly depends on the knowledge of the adjustment and the collaboration by such partners. Temporary limitations of the interface do not grant Clients a special right of termination; the ordinary right of termination remains unaffected. If an interface is to be established, this must be declared in a separate document and a corresponding DPA (in accordance with Art. 28 GDPR).
(7) Discontinuation of the Accessibility of Third-party Services. If services, which are integrated into the Climedo software by third parties or direct contractual partners and made available to the Client, are extended or further developed by partners or third parties to such an extent that continued use is technically impossible or not economically viable to maintain, or their (technical) availability is completely discontinued, or the services are terminated by the partner, Climedo shall not be liable. Climedo does not guarantee the Client any permanent availability of integrated third-party services when the contract is signed or on behalf of such third party.
(1) General Principle. Climedo’s liability is unlimited in cases of intentional or grossly negligent action by Climedo, as well as in situations caused by Climedo that result in injury to life, limb or health, and in cases covered by the Product Liability Act.
(2) Limitation of Liability. For other negligent actions, Climedo’s liability is limited to the typically foreseeable damage, and Climedo is only liable for the breach of such obligations, the fulfillment of which is essential for the performance of the contract, considering the mutual interests of the parties, and on the observance of which the Client may rely. Otherwise, for example in the event of a slightly negligent breach of material contractual obligations, Climedo’s liability is excluded.
(3) Liability for Data Loss. Climedo shall not be liable for the loss of data or programs to the extent that the damage is due to the Client’s failure to carry out regular data backups and thereby ensure that lost data or programs can be restored with reasonable effort. This shall not apply if and to the extent that Climedo itself was entrusted with data backup for the Client under a contract concluded between both parties.
(4) No Strict Liability. Contrary to Section 536a (1) Var. 1 BGB, Climedo shall not be liable for damages regardless of fault due to a defect existing at the time of conclusion of the contract. Furthermore, Climedo is not liable for a defect outside the software or due to a user error.
(5) Applicability to Other Persons. The above provisions shall also apply in favor of Climedo’s legal representatives, employees and vicarious agents.
(1) Remuneration; Adjustment of the Remuneration. Climedo’s remuneration, including all ancillary costs and any rebates and discounts granted, shall be set by the parties in the order for the services agreed thereunder. Unless otherwise specified in an order, Climedo may adjust the fees annually. Adjustments are permitted in particular to take account of changes in the costs of salaries and wages as well as purchased IT services. An adjustment of the fees shall take effect on the date specified by Climedo with effect for the next renewal period of the order, but not earlier than one month after receipt by the client of a notification of the adjustment of the remuneration. If the fee is increased by more than 5%, the client shall be entitled to terminate the order in question with effect from the date on which the adjustment comes into force. Notice of termination must be given in writing without delay, but no later than 14 days after receipt of the notification of the adjustment to the remuneration. This provision on termination shall not apply if the increase is due to the agreed conditions being exceeded, which results in a proportional, automated increase in the costs to be paid.
(2) Billing Period. Unless expressly agreed otherwise in the order/contract, a one-off payment shall be agreed for the initial phase and annual remuneration with annual advance payment shall be agreed for the further term of the order/contract. The payment period for all Climedo invoices shall be 14 days from receipt of the invoice at the invoice address specified by the Client upon conclusion of the contract or subsequently changed in accordance with §3(9). All monthly costs incurred, used or paid can be invoiced by Climedo on a monthly basis (e.g. SMS dispatch, service hours, activated licenses, etc.). There is no requirement for the Client to place a specific order to book the cost-incurring actions. This also includes the independent activation of studies or surveys within the Climedo software by the Client, which can be billed directly after activation.
(3) Complaints. Notwithstanding the parties’ agreements on warranty and liability, the Client shall assert complaints about Climedo’s invoices within 60 days of their receipt at the latest within the meaning of the preceding paragraph. If no such complaint is made, the Client is excluded from objecting to alleged errors or inadequacies in the invoice.
(4) Default Payment. In the event of default in payment, Climedo is entitled to demand statutory interest and flat-rate default charges. Without prejudice to other rights granted under an order/contract, Climedo is also entitled, in the event of default in payment, to make future services dependent on an advance payment by the Client, whereby in the case of expense-related remuneration, an advance payment may be demanded in the amount corresponding to (a) the average invoice amount of the past twelve (12) months for the respective order/contract or, if the order/contract in question does not have a correspondingly long term, (b) the average monthly fee calculated from the estimate of the expenses for the respective order/contract. If the Client fails to meet its payment obligation even after a reminder has been issued, Climedo shall also be entitled to temporarily deactivate access to the application until payment has been made. If payment is still outstanding, Climedo is entitled to deactivate and delete the instance after a 3-month reminder notice, but only after prior data backup. No liability is assumed with regard to the completeness of the data. Data is stored for a maximum of 90 days.
(5) Taxes and Fees. All fees stated in an order/contract are net amounts in Euros and are to be paid by the Client plus any applicable taxes. Bank fees, transfer fees or other fees incurred for payment shall be borne by the Client.
(6) Offsetting. The Client may only offset Climedo’s remuneration claims against claims that have been legally established or recognized by Climedo. This shall not apply if the Client’s claims for set-off are based on additional costs for the rectification of defects or completion of the software provision in general.
(1) Term. The term of the contract begins on the date of its conclusion. It determines the initial term of the contract (“start phase”). The contract is automatically extended by one year (12 months) if it is not terminated in writing by one of the parties with three months’ notice to the end of the original contract term or if other termination parameters have been agreed.
(2) Extraordinary Termination. Each party has the right to extraordinary termination if it can no longer be reasonably expected to continue the contractual relationship. The extraordinary termination must be declared in writing to the other party. A justified extraordinary termination shall take effect immediately upon receipt of the notice of termination. A reason for extraordinary termination exists in particular in cases in which the terminating party has previously notified the other party of a material breach of contract, at least in text form, and this breach of contract has not been remedied or rectified by the other party within 30 days.
(3) Consequences of Termination. Unsaved Client data will be lost when a termination takes effect, as Climedo will completely delete the access together with all associated Client data (i.e. in particular posted texts, images, graphics, videos, audios, other files, data or links). Climedo will inform the Client of this separately before deletion. Any statutory retention periods of Climedo shall remain unaffected.
(1) Intellectual Property of Climedo. Notwithstanding the granting of rights of use in accordance with §2, the Client does not acquire any rights to intellectual property of Climedo or third parties which Climedo uses for the provision of services, in particular the provision of the application and including its content. In addition, the Client acknowledges and allows Climedo to create aggregated/anonymized data and other usage-relevant parameters and to use, copy, extract, modify, distribute, analyze, compile and display them for routine business purposes, in particular for the development, improvement and support of the application or other products and services of Climedo or to comply with legal obligations. For any further use of the data records, it is clarified that Climedo holds all rights to any database work within the meaning of Section 4 (2) UrhG and is the database manufacturer pursuant to Section 87a (2) UrhG.
(2) Intellectual Property of the Client. The Client grants Climedo a non-exclusive right of use, free of charge and unlimited in terms of time, place and content for the duration of the contract in question, to all intellectual property of the Client, including Client data, which is provided, transmitted or otherwise made accessible to Climedo for or in the context of the provision of services under an order/contract by the Client or by a third party on behalf of the Client. From the start of the contractually agreed contract term, Climedo is permitted to use the Client’s logo as a reference in the context of marketing measures, unless otherwise agreed. In particular, the logo may be used as a reference on the Climedo website and in its presentation documents.
(3) Improvement suggestions. The Client grants Climedo a non-exclusive, sublicensable right of use free of charge, unlimited in time, territory and content, to all intellectual property of the Client that is provided, transmitted or otherwise made available to Climedo in the form of suggestions, ideas, recommendations, change requests, requests for the provision of services or other suggestions for improvement (collectively “improvement suggestions”) in the context of the provision of services under an order/contract by the Client or on behalf of the Client by a third party (in particular by trusted partners). Improvement suggestions also include, in particular, tab templates (data entry masks) which the Client or trusted partners create or generate using the application. Improvement suggestions are not considered confidential information. This paragraph shall not apply if and to the extent that the Client or a third party commissioned by the Client notifies Climedo accordingly in writing when providing, transmitting or otherwise making available a suggestion for improvement.
(4) Improvement of Performance. In order to ensure that the performance and optimization of the application always meets user requirements, Climedo may collect feedback in anonymous or pseudonymous form by means of user surveys and collect and process information, which may also include personal data.
(5) Standard of Care. The Information Recipient shall exercise at least the same degree of care with regard to the confidential information of the Information Holder as with regard to its own confidential information, but in no case less care than a reasonable businessman would exercise.
(6) Restrictions on Use of Confidential Information. The Information Recipient shall (a) use the Information Holder’s Confidential Information only for the purposes of the contract and in the manner permitted under an order/ contract, and (b) limit access to the Information Holder’s Confidential Information to those employees and partners, whether its own or those of its affiliates or permitted subcontractors, for whom (i) knowledge of such Confidential Information is necessary for the performance of the relevant order/contract and (ii) who are under an obligation of confidentiality to the Information Recipient which includes no less stringent than these Terms of Use.
(7) Disclosure of Confidential Information due to Legal Obligation. The Recipient may disclose confidential information of the Information Holder to third parties if it is obliged to do so by law or by court or an official order. In such cases, the Information Recipient shall inform the Information Holder of the impending disclosure in advance, if possible, in order to give the Information Holder the opportunity to prevent the disclosure as far as possible at its own expense.
(8) Duration of the Obligation. The contractual confidentiality agreement is limited to a period of two (2) years after the end of the relevant order/contract, unless otherwise agreed (e.g. as part of an NDA).
(9) Return of Documents. The parties shall carefully store the documents provided for the fulfillment of an order/ contract in their mutual interest. These documents shall be returned to the other party upon request at the end of the contract for the other party’s own discharge, otherwise they shall be destroyed after the expiry of existing retention periods.
(1) Definitions. For the purposes of this Section 12, the terms “personal data”, “controller”, “processor” and “processing” shall have the meaning given to them by the General Data Protection Regulation (GDPR) or other applicable data protection laws.
(2) Order Processing. As part of the provision of services under an order/contract, it may be necessary for Climedo (a) to process personal data as a (sub-) processor for the client (as controller or processor) on its own IT systems or (b) to access the Client’s IT systems in such a way that it cannot be excluded that personal data, for which the Client is the controller or which it processes as a processor, may become known.
(3) Agreement on Order Processing. The processing of personal data by Climedo in the aforementioned cases shall be carried out in accordance with the agreement on data processing to be concluded separately between the parties in accordance with Art. 28 GDPR or a corresponding agreement in accordance with the applicable data protection laws.
(4) Trusted Partners. For the avoidance of doubt, the data protection relationships between the Client and its trusted partners are the sole responsibility of these parties and lie outside the responsibility of Climedo. In particular, it is the sole responsibility of the Client and its trusted partners to conclude any necessary agreements on joint responsibility in accordance with Art. 26 GDPR and to inform the persons affected by the data processing in accordance with Art. 13, 14, 26 GDPR.
(1) Place of Performance Provision. The place of performance provision for all services provided by Climedo under contracts concluded with the Client shall be its registered office, unless performance is to take place at a different location due to the nature of the matter.
(2) Applicable Law. These Terms of Use are subject to the law of the Federal Republic of Germany with the exception of those provisions of German law which provide for the applicability of another statute. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(3) Place of Jurisdiction. The courts of Munich, Germany, shall have exclusive jurisdictions for all disputes arising out of or in connection with these Terms of Use. However, Climedo is also entitled in all cases to bring an action at the Client’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.
(1) Mutual Representations and Warranties. Each party represents and warrants that: (a) it is authorized to enter into and perform a contract incorporating these Terms of Use, (b) the conclusion of the contract incorporating these Terms of Use has been duly approved by the competent decision-making bodies of the party, (c) it is acting as an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) when concluding the contract, (d) neither it nor its employees or representatives have received or offered any illegal payment or reimbursement or gifts, valuables or other benefits in connection with the conclusion of this agreement, and (e) it is not included on any list of persons excluded from the conclusion of the contract (anti-terror list).
(2) Force Majeure. Neither party shall be liable to the other party for any delay in performance or inability to perform at all if such delay or inability to perform is due to fire, natural disaster, governmental order, riot, civil commotion, strike, lockout or any other event beyond the reasonable control of the party concerned and the continuance or removal of which is beyond its reasonable control (“Force Majeure Event”), whether such Force Majeure Event occurs at the party concerned or at any of its subcontractors. Such downtimes shall not be counted towards the service level specified in the order. If a force majeure event occurs, the Service Period shall be extended by the period for which the Force Majeure Event exists. Notwithstanding the foregoing, either party shall be entitled to terminate their contract for cause if the same force majeure event continues for a period of more than eight (8) weeks.
(3) Assignment. An order/contract or the rights and obligations arising therefrom may not be transferred by either party to a third party without the prior written consent of the other party. §354a HGB remains unaffected.
(4) Waiver. The failure of either party to enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision unless the waiver is expressly stated by that party.
(5) Relationship of the Parties. The parties act as independent companies. No employment relationship or agency agreement is established between the parties upon conclusion of a contract, including no joint venture, no company, no employment relationship or no agency agreement.
(6) Written Form. Any amendment or addition to these Terms of Use and legally relevant declarations and notifications by the Client in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall only be effective if they are made in writing, i.e. in written or text form (e.g. letter, e-mail). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.
(7) Exclusion of General Terms and Conditions; Other Contractual Conditions. The Client’s general terms and conditions shall not apply. This also holds true if Climedo does not expressly object to the inclusion of the Client’s general terms and conditions or performs services for the Client without reservation in the knowledge of the Client’s general terms and conditions. Other Terms and Conditions of Use (besides these) shall only become part of the contract if the parties expressly agree to them, at least in text form. If, in addition to the written agreement of a contract, the Client’s internal organizational guidelines require that the Client also generates its own internal order, it shall ensure, notwithstanding the preceding sentence, that the content of the order does not deviate from the provisions of these Terms of Use or the binding contract.
(8) Statutory Provisions. References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these Terms of Use.
(9) Amendment of these Terms of Use. Climedo reserves the right to amend and adapt these Terms and Conditions of Use with effect for the future, in particular due to changes in the legal situation, supreme court rulings or market conditions. The current version of the Terms of Use can be requested by the Client via support[at]climedo.de or downloaded from www.climedo.de/terms. It is the Client’s responsibility to inform itself of any changes to these Terms and Conditions of Use. In addition, the client will be notified of the changes by e-mail approximately one month before the planned entry into force of the new version of the Terms and Conditions of Use. If the Client does not object to the validity of the new Terms and Conditions of Use within three weeks of receipt of this notification, the new terms shall be deemed accepted. Climedo shall inform the Client of the significance of the deadline and the right of objection as well as the legal consequences of silence separately in a suitable form (in the sense of implied action). This amendment mechanism does not apply to amendments to the main contractually agreed obligations of the parties.
(10) Severability Clause. Should any provision of these Terms of Use be or become void or voidable or invalid for any other reason, the remainder of the contract shall remain valid.
Climedo Health GmbH
General Terms and Conditions of Use I Version 2.2 I Date: 01 May 2024