General
Terms and Conditions of Business
Version dated 1st December
2024
Table of contents
A. General information....................................................................................................... 2
1. Scope
of these General Terms and Conditions of Business............................. 2
2. Online
registration/activation......................................................................... 2
3. Conclusion
of contract.................................................................................. 2
4. Term
and termination.................................................................................... 3
5. Privacy
policy............................................................................................... 3
6. Confidentiality.............................................................................................. 3
7. Marketing
and advertising............................................................................. 4
B. Electronic
health record (eGD)....................................................................................... 4
1. Functionality................................................................................................. 4
2. eGD
service/Right of Use.............................................................................. 5
3. Exclusion
from the eGD service/offers from third parties................................. 5
4. Technical
requirements................................................................................. 5
5. Maintenance
and further development........................................................... 5
6. Obligations
of the User................................................................................. 6
7. Fees
and costs............................................................................................. 6
8. Intellectual
property...................................................................................... 6
9. Guarantee
and responsibility for content........................................................ 7
10. Limitation
of liability....................................................................................... 8
11. Termination
of the Right of Use..................................................................... 8
C. Final
provisions............................................................................................................. 8
1. Severability
clause........................................................................................ 8
2. Assignment
and delegation........................................................................... 8
3. Amendments
to the contractual conditions..................................................... 9
4. Communications........................................................................................... 9
5. Applicable
law and jurisdiction....................................................................... 9
1.3
Agreements between openmedical and individual
Users that deviate from these GTC shall only apply if openmedical agrees to
them in writing.
2.4
In the event of a breach by the Userof any of
the provisions in these sections, A.2.2 and A.2.3, openmedical is entitled to block and/or
delete the User's account and/or access and/or to claim damages.
By completing
the registration process in accordance with section A.2 above and/or by
first using or logging into the account (online or app), the User acknowledges
and agrees to these GTC. At the same time, the User thereby submits an offer to
openmedical to conclude a contract regarding the use of openmedical products.
By activating the User, openmedical accepts this offer, and a contract is
concluded between openmedical and the User, taking into account these GTC. The User will be informed accordingly.
4.1
The legal relationship between openmedical and
the User is concluded for an indefinite period, unless otherwise agreed between
the Parties. With the death of the User, the legal relationship will end
automatically, and openmedical will automatically delete the corresponding eGD
(subject to any mandatory statutory retention obligations).
4.2
The User has the right to terminate the
contractual relationship at any time and to revoke the relevant instances of
consent to the use of their data by openmedical or by healthcare providers. The
corresponding notice of termination must be sent to openmedical in writing, but
can also be carried out by the User in their account (online or via the app).
The right of termination on the part of the User in accordance with
Section C.3.2 is furthermore reserved. A deletion
request/a deletion order from the User will also lead to the termination of the
contractual relationship. In any case, termination or a deletion request/order
by the User entitles openmedical to irrevocably delete and/or anonymise the
User's account/eGD; any mandatory statutory retention obligations are
maintained.
4.3
openmedical
has the right to terminate the Contract extraordinarily and without notice for
cause. Cause is granted in any circumstance that makes it unreasonable for
openmedical to continue the cooperation until the end of the agreed notice
period. Cause is primarily constituted by: (i) non-compliance with legal
regulations on the part of the User (ii) serious breach of contractual
obligations by the User (e.g., misuse of the openmedical products, incorrect
information when concluding the contract, default of payment for at least 60
days despite written reminder, infringement of intellectual property rights
despite written warning) or (iii) damage to other Users or healthcare providers
by a User in a relevant manner. In this case, any remuneration or fee is
calculated pro rata temporis. The right to claim damages remains unaffected. Section C.4
applies to the notification of termination.
4.4
The accounts of inactive Users will be deleted
after at least two notifications in a suitable form (see section C.4) and
no reaction from the User.
4.5
Furthermore, openmedical has the right to
terminate the Contract without cause with a notice period of seven (7) days. Section C.4 applies to the notification of termination.
4.6
On the effective date of withdrawal/revocation
or termination, all openmedical services will be discontinued, all access
rights will be deleted, and the User's online account will be closed. Data from
the eGD will no longer be available to the User. This is subject to statutory
retention periods. At the same time, the User's right to use the openmedical
products will expire.
5.1
The data protection statements of openmedical AG
apply, in their currently valid version. They can be accessed here:
https://www.openmedical.swiss/LegalResources/DSH_openmedical_AG.html.
5.2
By using the electronic health record, Users
consent to the transfer of their health data to openmedical by those bound by
professional secrecy. openmedical is not subject to professional secrecy in the
context of the electronic health record but maintains the confidentiality of
information in accordance with Section A.6.
5.3
The data collected within the framework of the
eGD can be processed in an anonymous form by openmedical for the purpose of
product improvement, medical research and transfer to third parties (e.g.,
clinics, healthcare providers, health insurance companies).
6.1
All information concerning the User, regardless
of whether it is subject to medical confidentiality or not, will be treated
confidentially by openmedical and used only in accordance with these GTC. See,
in particular, the regulation on data protection in section A.5 above). Legal
obligations to provide information are reserved in any case.
6.2
This confidentiality obligation already exists
before the conclusion of the Contract and continues even after termination of
the contractual relationship.
openmedical is
authorised to advertise information and/or offers of (additional) own services
and/or those of third-party providers within the framework of openmedical
products. openmedical is authorised to inform Users at regular intervals or on
special occasions by email, via the app or in another suitable way about
health-related services, offers and activities of openmedical or third-party
providers and to access their personal data for this purpose.
1.1
The web-based, electronic health record eGD is a
software-based service that openmedical provides to public and/or private
companies or service providers active in the healthcare sector, but also to
private individuals and patients (Users). The eGD serves on the one hand as an
electronic storage medium for health data and on the other hand for the
electronic provision, retrieval, analysis and other processing of such health
data for the purpose of exchange between patients and doctors, as well as other
health professionals (e.g., hospitals, laboratories, medical radiological
institutes, doctors, pharmacies, and/or other healthcare professionals as part
of a medical treatment. At the same time, patients can use the eGD to purchase
medical goods (e.g., medicines, consumables, etc.) and services.
1.2
The following information is summarised under
the term "health data", with this being a non-exhaustive list:
(i) medical patient data, such as general information (weight, height,
BMI, blood sugar, blood pressure, pulse, etc.), diagnoses, laboratory results,
therapies, prescribed drugs, treatments or allergies, as well as (ii) medical documents,
such as treatment documentation, X-rays, vaccination certificates, doctor's
prescriptions or advance healthcare directives.
1.3
openmedical can offer various additional
services in connection with the eGD, which may be subject to a fee. Users will
be informed in an appropriate manner about new additional services and any
associated costs.
1.4
"Chronic Disease Management"
additional service: as part of the eGD, the Chronic Disease Management program
is offered as an additional service. This service is optional and allows the
User to regularly send health data to their attending physician and other
health service providers. The details (in particular, the type of data
transferred, will be determined when the relevant Chronic Disease Management
Program is activated). The aim of the program is to detect deviations in the
state of health of Users with chronic illnesses at an early stage through
regular checks. Another aim is to enable or facilitate the regular ordering of
medicines and laboratory reports via eGD. In the context of the use of Chronic
Disease Management, anonymised data is passed on to third parties. These use
the data to provide it to third parties.
In addition to manual input by the patient or health service provider, data is
collected by medical devices (IoT) of the health service provider and/or
devices of openmedical.
1.5
In the course of the transfer of health data to
openmedical, identification numbers (so-called identifiers, short IDs) are
collected from the various applications in order to merge the information in
the health record. Openmedical uses these IDs for other purposes of its own,
e.g., the Master Patient Information Service.
2.
eGD service/Right of Use
2.1
openmedical hereby grants the User the personal,
non-exclusive and non-transferable right to access the eGD in its currently
valid version and to use and utilise it as intended for the intended purpose
(the "Right of Use"), and the User undertakes to exercise the
Right of Use as intended.
2.2
The User receives access via eGD to their health
data (entered by themselves or by healthcare providers). The User and the
authorised healthcare providers can subsequently retrieve the eGD, analyse it,
supplement it with further medical information and, in particular, use it for
any medical treatment. The healthcare provider can also communicate with Users
via the eGD and send Users documents electronically.
2.3
The User shall take into account that the health
data may also be made accessible only in part, for a limited period of time, or
until revoked, or with different authorisations and processing rights.
2.4
Details on the eGD services as well as on the
purchase of medical goods and services via openmedical or third parties are
regulated in the eGD as well as on the corresponding website (https://www.mednetpatient.swiss).
The use of the
eGD does not include services and offers provided by third parties, even if
these are brokered and/or marketed via the eGD or openmedical. In these cases,
the provider in question is the sole contractual partner of the User, on the
basis of its contractual conditions. In this case, the openmedical service is
limited to the provision of the eGD, insofar as this is relevant for the
provision of the services of third parties. Services and offers from third
parties are marked or recognisable as such.
4.1
The User is responsible for providing the
technical prerequisites (IT System, app for mobile devices, Internet access,
etc.) for using the eGD after registration/activation. Data is transmitted via
the Internet. The User is responsible for the provision of an Internet
connection and bears all costs incurred in this context. Ensuring the power
supply is also the exclusive responsibility of the User.
4.2
The date, time, type of access and IP address of
all instances of access are logged on the eGD of the User.
5.1
The User is aware that the eGD or the underlying
software and the app is/are revised from time to time to correct program errors
or for further development in the context of new releases (software versions).
If not already carried out automatically, the User undertakes to carry out
corresponding updates at the request of openmedical.
5.2
The User acknowledges that the appearance, name,
interfaces, behaviour and output of the eGD and the app may change as a result
of these further developments.
5.3
openmedical shall correct program errors within
a reasonable period of time. Maintenance, support and other services are
offered exclusively via email at support@openmedical.swiss.
5.4
openmedical is not liable for any damage to the
User's IT System that occurs after maintenance, unless this has been
demonstrably caused by openmedical.
6.1
The User warrants that they shall only register
a single, personal eGD for themselves and acknowledges that opening an eGD for
third parties is not permitted. Opening an eGD within the framework of a legal
or contractual right of representation remains reserved. This includes, in
particular, representation of minor children by their parents and, in general,
representation of family members or relatives based on legal or contractual
representation rights.
6.2
The User undertakes to use the eGD only in
accordance with the Contract and for the intended purposes.
6.3
The Right of Use only includes the use of the
eGD within the meaning of these GTC. Any other use, in particular, use for
one's own business purposes or the like, is prohibited. The User and the
authorised healthcare providers can subsequently retrieve the eGD, analyse it,
supplement it with further medical information and, in particular, use it for
any medical treatment.
6.4
By using the eGD or mednet products, the User
does not acquire any (intellectual) property or ownership rights to mednet or
the underlying software. All corresponding rights shall remain with the
Licensor (see section B.8).
6.5
It is in the User's own interest to, and it
shall, ensure that the health data they enter and store in the eGD is correct
and complete. The User shall only be liable for health data entered by
healthcare providers if the User can reasonably be expected to correct/report
such data in good faith.
6.6
The User is responsible for deciding which other
Users or healthcare providers are granted access to their eGD. The User is
aware that, and bears the full risk if, access can be misused by third parties
and unauthorised persons can also gain access to their eGD if they obtain
access data. It is the sole responsibility of the User to instruct and monitor
these third parties accordingly or, if necessary, to withdraw their access.
openmedical is not obliged to take action against other Users for any violation
of these GTC.
7.1
openmedical may charge the User an appropriate
fee for the use of the eGD, which will be communicated and requested annually
or monthly (in advance in each case). In addition, openmedical has the option
of offering special services in connection with the eGD, both free of charge
and for a fee (see sections B.1.3 and B.1.4).
7.2
In principle, Users will be informed in an
appropriate manner (online or via the app) of the fees or other costs arising
from the use of the eGD. The fees for using the eGD can then be requested at
support@openmedical.swiss.
8.1
The eGD or the software on which it is based is
protected by copyright. All (intellectual) property or ownership rights and all
trade mark rights to the software and/or in relation to the eGD remain with
novcom AG, Reinach (BL), CHE-398.697.236 (the "Licensor") or,
if applicable, with another licensee in the openmedical Group.
8.2
Irrespective of the granting of the Right of Use
in accordance with these GTC, all rights to eGD and openmedical products or the
underlying software (as well as related documentation and expertise) remain
with the Licensor. The User is not granted any rights of disposal or of
ownership or any proprietary rights to the software (or to any of the Licensed
Material).
8.3
It is assumed that the other third-party content
accessible via the eGD or made available by openmedical – with the exception of
the individual health records on the eGD – is also protected by copyright, and
its use, unless covered by these GTC, is only permitted with the written
consent of the relevant author and against payment.
9.1
To the extent permitted by law, openmedical
rejects any warranty and liability for any direct or indirect damages incurred
by the User in connection with the use of the eGD. This includes, in
particular, damage due to the use of health data and damage due to transmission
errors, technical defects, interruptions, disruptions, or unlawful actions of
third parties.
9.2
The User or the healthcare providers are solely
responsible for which health data or other content is uploaded to the eGD or
forwarded to third parties and disclosed to them. To the extent permitted by
law, openmedical excludes any responsibility for health data or other content
uploaded to the eGD by the User or the healthcare provider, in particular, its
correctness, completeness, up-to-dateness, legality, appropriateness and
availability, as well as its suitability for a specific purpose. openmedical
accepts no liability for any damage or consequential damage resulting from the
aforementioned grounds. In particular, openmedical excludes any liability for
damage or consequential damage caused by system interruptions or failures and
is also not liable for data losses in the eGD.
9.3
openmedical is in no way responsible for actions
taken in relation to a User on the basis of the health data transmitted.
9.4
The User bears all risks that may arise from
(unlawful) manipulation or interference by third parties with its IT Systems,
from the misuse of access data for the openmedical products, or in the context
of data transmission.
9.5
While openmedical makes every effort to ensure a
high level of availability of the eGD, it offers no guarantee of uninterrupted,
fault-free and/or error-free functioning or availability.
9.6
openmedical explicitly excludes any liability
for damage or the consequences of damage due to unforeseen events, such as
Interruptions or disruptions due to force majeure (e.g., power failure, virus
attack, natural events, etc.), or third-party fault, overloads or other
disruptions to network connections, official measures (in particular,
unforeseeable restrictions), changes to services by the healthcare provider or
practice software manufacturers, etc.
9.7
openmedical takes precautions to protect data
and systems from third-party interference. However, it cannot guarantee that
openmedical products are fully protected against unauthorised access or
unauthorised interception or that malicious software, spyware, hacker or
phishing attacks, etc., will not impair the use of openmedical products, or
damage or otherwise harm the infrastructure of the User. If a connection of the
User damages or endangers the eGD, openmedical may discontinue its services
without notice and block the User's access to the eGD or other openmedical
products.
9.8
Any guarantee and liability for third-party
software deployed in connection with use of openmedical products is excluded to
the extent permitted by law.
9.9
openmedical points out that the eGD may contain
connections or references ("links") to third-party websites. The
accuracy and completeness of such information cannot be checked by openmedical;
any responsibility for its content is rejected by openmedical.
To the extent permitted by law, the liability of openmedical for
itself or its vicarious agents for all damages, including indirect damages and
consequential damages (e.g., loss of profit, third-party claims, loss of data,
etc.), is excluded.
11.1
Upon termination of the contractual relationship
between openmedical and the User, the Right of Use for the eGD also expires
with immediate effect and automatically. The User may no longer use the eGD
after termination of the contractual relationship and shall otherwise be
infringing the Licensor's copyrights.
11.2
The User reserves the right to their own
personal health data.
Should one or
more provisions of these GTC be invalid or unenforceable in whole or in part, this
shall not affect the validity or enforceability of the remaining provisions of
these GTC. Instead, the (partially) invalid or unenforceable provision shall be
replaced by a provision that comes as close as possible to the economic purpose
of the provision to be replaced.
This Contract
or individual rights and obligations arising from it may only be assigned or
transferred to third parties with the prior written consent of the other Party.
Any full or partial transfer of this Contract or individual rights and
obligations arising from it from openmedical to another group company, e.g.,
Novcom AG, is permitted without the consent of the User at the discretion of
openmedical.
3.3
The GTC can be viewed and downloaded in their
currently valid form in the User's account (online or via the app) or on the
websites https://www.mednet.swiss or https://www.mednetpatient.swiss.
4.1
Unless otherwise agreed in these GTC, all
written communications from openmedical to Users can also be sent via email to
the email address provided by the User as part of the registration process.
They are deemed to have been performed and delivered upon sending.
Communications in other forms (e.g., via the app) are also permitted and valid.
4.2
There are no verbal ancillary agreements to this
Contract or to these GTC.
5.1
Subject to mandatory applicable law, these GTC
are subject to Swiss substantive law, to the exclusion of conflict of law rules
and the Vienna Sales Convention (CISG).
5.2
The courts at the registered office of
openmedical or at the place of residence of the respective User shall have
exclusive jurisdiction for all legal actions of the User arising from or in
connection with the legal relationship between openmedical and the User. The
courts at the place of residence of the User have exclusive jurisdiction for
corresponding actions brought by openmedical. Further
mandatory places of jurisdiction remain reserved.