General Terms and Conditions

 

Version dated August 31, 2023

 

Contents

A.         General 2

1.         Scope of these General Terms and Conditions. 2

2.         Online registration. 2

3.         Conclusion of contract 3

B.         "mednet" communication service. 3

1.         Functionality. 3

2.         User's right of use. 3

3.         Exclusion from the right of use. 4

4.         Technical aspects and requirements. 4

5.         Extended use of mednet 5

6.         Obligations of the User to cooperate. 5

7.         Documentation and instructions. 5

8.         Maintenance and further development 5

9.         Intellectual property. 6

10.        Fees and costs. 6

11.        Security measures of the User 7

12.        openmedical guarantee. 7

13.        openmedical's limitation of liability. 8

14.        End of the right of use. 8

C.         "mednet patient" electronic health record. 9

1.         Functionality. 9

2.         Online registration. 9

3.         eGD service / right of use. 9

4.         Exclusion from the eGD service / offers from third parties. 9

5.         Technical requirements. 10

6.         Maintenance and further development 10

7.         User obligations. 10

8.         Fees and costs. 10

9.         Intellectual property. 10

10.        Guarantee and responsibility for content 11

D.        Other general provisions. 11

1.         Term and termination. 11

2.         Privacy policy. 12

3.         Confidentiality. 12

4.         Marketing and advertising. 12

E.         Final provisions. 12

1.         Severability clause. 12

2.         Assignment and delegation. 13

3.         Amendments to the contractual conditions. 13

4.         Communications. 13

5.         Applicable law and jurisdiction. 13

 

A.            General

1.            Scope of these General Terms and Conditions

1.1          These General Terms and Conditions (the GTC or the Contract) apply between OpenMedical AG, based in Reinach (BL), CHE-109.447.715 (openmedical), and its healthcare provider customer base (Users[1]) (openmedical and Users are separately referred to as a Party and together as Parties). Users' patients are excluded from the scope of these General Terms and Conditions.

1.2          These GTC regulate, on the one hand, the business relationship between openmedical and the Users in connection with their use of the "mednet" communication service (see section B below) and, on the other hand, openmedical's contractual relationship with the Users with regard to their use of the "mednet patient" electronic health record (see section C below in particular). The communication service "mednet" and the electronic health record "mednet patient" are jointly referred to as openmedical products.

1.3          Even without an explicit reference, the following statements on the "mednet" communication service (section B.) also apply to the "mednet patient" electronic health record (section C.), unless the nature of the service conflicts with the corresponding provisions. The general provisions (this section A.) as well as the other general provisions (section D.) and the final provisions (section E.) then apply to the entire GTC and thus also to the "mednet" communication service (section B.) and to the "mednet patient" electronic health record (section C.)

1.4          General terms and conditions of the User shall only apply to the extent that openmedical has expressly agreed to them in writing.

2.            Online registration

2.1          In order to enter into a contractual relationship with openmedical, a User must register on the "www.openmedical.swiss" website or via "mednet" (via https://www.mednet.swiss). Registration is free.

2.2          With the opening of a "mednet"account, a "mednet patient" access (https://www.mednetpatient.swiss) is automatically generated for the User. This gives them the opportunity to keep or process an electronic health record for their patients. However, if a User does not make use of their electronic health record access, "mednet patient" access remains free of charge.

2.3          The User warrants that all data provided during registration is complete and correct. Changes to their personal data (e.g., name, company, address, telephone and mobile number, email address, payment information, etc.), must be adjusted immediately in their mednet account or openmedical must be informed by email at support@openmedical.swiss. Openmedical accepts no liability for the consequences of changes made late or not at all.

2.4          The User must set a secure password as part of the registration process and undertakes to change this at regular intervals. They must treat their access data confidentially and may not pass it on to third parties. If there are indications that third parties have gained knowledge of the User's access data, the User must change their password immediately or arrange for their account and/or access to be blocked. To the extent permitted by law, openmedical rejects any liability for damages or consequential damages resulting from the disclosure of access data. The User acknowledges that actions taken using their access data prior to blocking are their own or have been authorized by them and are fully responsible for them.

2.5          In the event of a breach of any of the provisions in these sections A.2.3 and A.2.4 by the User, openmedical is entitled to block and/or delete the User's account and/or access and/or to claim damages.

3.            Conclusion of contract

By completing the registration process in accordance with section A.2 above, 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 (see, however, section A.2.2 above). 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.

B.            "mednet" communication service

1.            Functionality

1.1          "mednet" is a software-based electronic communication solution that aims to securely transmit health data to the User (mednet).

1.2          The following information is summarised under the term "health data" in the sense of a non-exhaustive list: (i) medical patient data such as general information (weight, height, BMI, blood sugar, blood pressure, pulse, etc.), diagnoses, laboratory results, therapies, prescribed drugs, treatments or allergies, as well as (ii) medical documents such as treatment documentation, X-rays, vaccination certificates, doctor's prescriptions or patient directives.

2.            User's right of use

2.1          openmedical hereby grants the User the personal, non-exclusive and non-transferable right to use and utilize mednet in its respective valid version as intended (right of use), and the User undertakes to exercise the right of use as intended.

2.2          The right of use, which is available to the User around the clock (unless otherwise agreed), is limited to the communication of data between protagonists in the healthcare sector.

2.3          "Intended use" within the meaning of these GTC includes conclusively:

a)             Use of mednet in the User's operation for their own purposes (i.e., communication of health data between protagonists in the healthcare sector) during the duration of the contractual relationship with openmedical and within the meaning of these GTC, i.e., in particular in compliance with the User's obligations under these GTC (see in this regard, in particular, but not exclusively, the following sections B.4, B.5, B.9, B.10, B.11, or D.3);

b)             Making copies of mednet or the underlying software required for backup and archiving purposes; and

c)             No execution of excluded actions (see section I.B.3 below).

3.            Exclusion from the right of use

3.1          Unless these GTC stipulate otherwise and/or openmedical has given its prior explicit consent, the scope of the right of use in accordance with section B.2 above is conclusive. The following in particular are therefore explicitly excluded from the right of use and the User is prohibited from:

a)             offering, renting, lending, passing on, making available or distributing mednet (including its software source code and documentation; together: the license material) to third parties – whether via the Internet or in any other way;

b)             the copying of mednet or its underlying software (including documentation) beyond the intended use, its editing, modification, (reverse) translation or extension, the creation of derivatives of the software, or the performance of other actions in order to obtain the source code of the software;

c)             additional functionalities of mednet (such as advertising spaces, advertisements, store access, etc.), which are only available within the framework of an additional agreement concluded between the parties. openmedical reserves the exclusive right to conclude additional agreements.

3.2          In any case, the User is prohibited from alienating the purpose of mednet, behaving abusively, or distributing or otherwise making accessible criminal or illegal content of any kind via mednet.

3.3          By using mednet, 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.9).

4.            Technical aspects and requirements

4.1          By granting the right of use to mednet, openmedical grants the User access to its communication network. For this purpose, the User receives a personal virtual "mailbox" in order to send and receive encrypted and format-specific data packets via mednet. The size of the package data is limited.

4.2          During data transmission, the electronic signature and the encryption of the data are carried out. The data can only be decrypted by another User.

4.3          Data is transmitted via the Internet. The User is responsible for the provision of an Internet connection and bears all costs incurred in this context. The securing of the power supply is also the exclusive responsibility of the User.

4.4          The User undertakes to create all necessary conditions for the use of mednet. This includes in particular the acquisition, installation and maintenance of suitable hardware or system components and a corresponding IT program (collectively: IT system), all of which are the sole responsibility of the User, as well as the functionality, security and legal compliance of the IT system.

4.5          Documentation on the minimum technical requirements for the installation and the technical operating conditions of mednet will be provided by openmedical on request.

5.            Extended use of mednet

5.1          The use of mednet on several workstations, on IT systems with a larger capacity or higher performance (with the exception of increased server capacity), in networks, in client-server operation or on additional mobile devices requires prior consultation with and consent from openmedical.

5.2          In the event of extended use of mednet, openmedical is entitled to increase the usage fee and any other associated fees (see section B.10 on fees/costs) in proportion to the extension of use with a notice period of at least one month to the beginning of the next month.

6.            Obligations of the User to cooperate

6.1          In addition to the other obligations of the User listed in these GTC, the User undertakes to take all necessary cooperation actions, in particular the following:

a)             Notification of a competent contact person including contact details (phone number, email, etc.) as part of the registration process with openmedical. The User acknowledges that all communication between the Parties with regard to the use of mednet takes place via this contact person;

b)             Taking appropriate precautions against possible malfunctions of mednet (e.g., data backup, regular monitoring of functionality, etc.);

c)             Taking the necessary security measures with regard to the use of its IT system or mednet (e.g., up-to-date virus protection, firewalls, etc.) and in particular not storing health data locally on private hardware (e.g., computers, mobile, etc.); and

d)             Prior announcement of relevant operational process changes to openmedical (e.g., adaptation of the format and layout of the health data to be transmitted).

6.2          All obligations to cooperate are provided by the User at their own expense.

7.            Documentation and instructions

7.1          openmedical provides the User with documentation for the operation of mednet and keeps track of it if necessary. The User may use and copy this documentation for the contractual use. Any further use requires the prior consent of openmedical.

7.2          The User undertakes to comply with all instructions given by openmedical in connection with the use of mednet.

8.            Maintenance and further development

8.1          The User is aware that mednet or the underlying software is revised from time to time to correct program errors or for further development in the context of new releases (software versions). If not already carried out automatically, the User undertakes to carry out corresponding updates at the request of openmedical.

8.2          The User acknowledges that the appearance, name, interfaces, behavior and output of mednet may change as a result of these further developments.

8.3          The correction of program errors by openmedical shall take place within a reasonable period of time. Maintenance, support and other services are offered exclusively via email at support@openmedical.swiss (see section B.10 on fees/costs).

8.4          The User shall provide openmedical with the assistance required for (maintenance) work in the User's area. This includes, for example, the granting of access to the User's computer system, the permission to view, change, update or delete existing technical data or software, or the provision of the necessary infrastructure. Maintenance work can be logged and/or recorded in other suitable ways.

8.5          openmedical is not liable for any damage to the User's computer system that occurs after maintenance, unless this has been demonstrably caused by openmedical.

9.            Intellectual property

9.1          The software on which mednet is based is protected by copyright. All (intellectual) property or ownership rights as well as all property rights to the Software are held by novcom AG, Reinach (BL), CHE-398.697.236 (the Licensor). openmedical holds the corresponding usage and distribution rights to the Software.

9.2          Irrespective of the granting of the right of use in accordance with these GTC, all rights to mednet or the underlying software (as well as related documentation and expertise) remain with the Licensor. The User is not granted any rights of disposal, ownership or proprietary rights to the software (or to all of the Licensed Material).

9.3          The User shall affix all copyright notices and other notices relating to intellectual property contained in the original on mednet or the software and/or documentation on all copies made by the User and on all other storage media used by the User for such purposes.

9.4          The User undertakes to notify openmedical without delay of any claims asserted by third parties for infringement of intellectual property rights relating to mednet or the software and shall leave any litigation proceedings exclusively to openmedical and/or the Licensor. Under these conditions, openmedical and/or the Licensor shall assume the costs and damages imposed on the User.

9.5          The User shall be liable to openmedical for all damages culpably caused by them as a result of copyright infringements and/or infringements of other industrial property rights.

10.          Fees and costs

10.1        Unless otherwise agreed between the User and openmedical, the User shall pay openmedical for the use of mednet, in addition to one-off installation and project costs, an annual usage fee per mednet module used as well as other annual fees (in particular maintenance fees and costs per connected communication partner), whereby the invoice shall be issued in January of the operating year at the latest (i.e., in advance). Further fees and costs (e.g., transaction costs and costs for customer-specific services) may then be incurred, whereby these are generally invoiced on a monthly basis.

10.2        The current fee and price list can be viewed online at www.openmedical.swiss and will be sent to the User upon written request to support@openmedical.swiss. The first fee payment (in particular, installation and project costs as well as usage fees and other annual fees, see above) is due immediately upon installation of the software. The usage fee is due irrespective of the effective use of mednet.

10.3        Unless otherwise agreed between the User and openmedical, the above-mentioned fees and costs shall apply to services that are necessary for the proper fulfilment of the contract (see section B.5 above for extended use). In addition to the right of use, the usage fee also covers the documentation costs and further developments of mednet. This does not include maintenance fees and costs per connected communication partner. Transaction fees incurred through usage are charged monthly together with specifically offered and customer-specific services (see section B.10.1 above).

10.4        openmedical shall assert any fees and costs with an invoice, which openmedical may also send by email; the same shall apply to any payment reminders. Invoices are due immediately. Payments must be made by the User within 30 days of receipt of the invoice.

10.5        The User is only entitled to offset or exercise a right of retention in respect of undisputed claims or claims that have been legally awarded to them.

11.          Security measures of the User

11.1        The User shall take the necessary technical and organizational measures to protect mednet or its software and documentation(s) from unwanted disclosure or access, theft or misuse by unauthorized persons.

11.2        The User shall also ensure the monitoring of the number and location of the copies of the program made in connection with the intended use.

12.          openmedical guarantee

12.1        openmedical guarantees the careful provision of its services in connection with the granting of the right of use to mednet.

12.2        The User will examine mednet after registration and activation and report any defects immediately in writing or by email, but at the latest after a further 30 days. Defects must be reported immediately after discovery. In the event of hidden defects, the User will notify openmedical in writing or by email within 10 days of their discovery.

12.3        If there is a defect, the User can initially only request a free repair. Openmedical shall at its own discretion either remedy the defect within a reasonable period of time or provide the User with a new, error-free version of mednet. Defect correction costs are at the expense of openmedical.

12.4        In the event that openmedical has not (successfully) carried out or cannot carry out the requested rectification within a reasonable period of time, the User shall be entitled to either (i) make a deduction from the usage fee corresponding to the reduced value; or (ii) withdraw from the contract – the latter, however, only if there are significant defects.

12.5        The warranty rights shall expire within two (2) years of registration or activation of the User. Maintenance services provided by openmedical during the limitation period shall be deemed to be rectification of defects, unless the User proves otherwise.

12.6        Further guarantee claims are excluded to the extent permitted by law. In particular, openmedical does not guarantee that mednet corresponds to the purpose of the User. The User is responsible for the careful operation of mednet and for regularly checking its functionality. openmedical excludes any guarantee in the event that the User is at fault (e.g., if the User makes changes to mednet without the prior consent of openmedical, violates openmedical's instructions or otherwise uses it in a manner not intended), or if defects are caused by external influences.

12.7        openmedical accepts no responsibility for and excludes any guarantee in connection with the selection, use and maintenance of the IT systems used by the User for the purpose of using openmedical products, including Internet connections.

12.8        The User shall also bear all risks that may arise from (unlawful) manipulation or interference by third parties with its IT systems, from the misuse of access data to the openmedical products, or in the context of data transmission.

12.9        The User is aware of the fact that mednet is used via the Internet, which is an open network accessible to everyone. Despite the use of modern security technologies, no absolute security can be guaranteed either on the part of openmedical or on the part of the User or in the context of data transmission.

12.10     While openmedical makes every effort to ensure a high level of availability of mednet, it offers no guarantee of uninterrupted, fault-free and/or error-free functioning or availability.

12.11     openmedical explicitly excludes any liability for damage or the consequences of damage due to unforeseen events, such as Interruptions or disruptions of mednet 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 User or practice software manufacturers, etc.

12.12     openmedical takes precautions to protect data and systems from third-party interference. However, it cannot guarantee that mednet is fully protected against unauthorized access or unauthorized interception or that malicious software, spyware, hacker or phishing attacks, etc., will not impair the use of mednet, damage the infrastructure of the User and/or patient or damage it in any other way. If a connection of the User damages or endangers mednet, openmedical may discontinue its services without notice and block the User's access to mednet.

12.13     Any guarantee and liability for third-party software used in connection with the use of mednet is excluded to the extent permitted by law.

12.14     openmedical points out that mednet may have 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.

13.          openmedical's limitation of liability

13.1        openmedical is liable to the User for damage incurred in connection with the use of mednet in the event of gross negligence, up to a maximum of 50% of the annual usage fees, but not more than CHF 20,000.00. Liability for culpably caused personal injury is excluded from this limitation.

13.2        Furthermore, to the extent permitted by law, the liability of openmedical for itself or its vicarious agents for indirect damages and consequential damages (e.g., loss of profit, third-party claims, loss of data, etc.) is excluded.

14.          End of the right of use

14.1        With the termination of the contractual relationship between openmedical and the User (see section D.1 below), the right to use mednet also expires with immediate effect and automatically. The User may no longer use mednet after termination of the contractual relationship and otherwise infringes the Licensor's copyrights.

14.2        The User is obliged to return (partial) copies of mednet or its underlying software (including modifications or software components linked to other programs) as well as all associated documentation, materials and other documents to openmedical immediately and without being requested to do so, or to arrange for their complete destruction and to confirm this to openmedical.

14.3        Any software installed for the use of mednet (including changes or software components connected to other programs) must be completely uninstalled. The completion of the uninstallation must be confirmed to openmedical no later than five working days after the end of the contract.

14.4        If the User does not comply with this obligation, openmedical has the right to charge them usage fees until further notice. Any right of retention according to Art. 895 ZGB is waived. The User reserves the right to retain an archive copy of the licensed material not used for productive purposes in order to comply with statutory retention obligations.

C.            "mednet patient" electronic health record

1.            Functionality

1.1          The web-based, electronic health record "mednet patient" eGD (the "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. The eGD serves on the one hand as an electronic storage of health data (see section B.1.2 above) and on the other hand for the electronic provision, retrieval, analysis and other processing of such health data at any time for the purpose of exchange between patients and doctors, as well as other health professionals (e.g., hospitals, laboratories, medical radiological institutes, pharmacies, and/or other healthcare professionals as part of a medical treatment. At the same time, patients can purchase medical goods (e.g., medicines, consumables, etc.) and services.

1.2          openmedical ensures that all patients whose health data is accessed by Users as healthcare service providers via the eGD have granted openmedical or the Users all necessary (access) rights and consents.

1.3          openmedical confirms that it will comply with applicable law and will only carry out activities requiring authorization or licensing if it has the appropriate authorization or license.

2.            Online registration

2.1          With the opening of a mednet account by the User, a "mednet patient" access is automatically generated (see section A.2.2 above). Registration of the User is required for the use of the eGD, even if the User does not store any health data themselves.

2.2          Reference is made below to the statements in section A.2.2

3.            eGD service / right of use

3.1          openmedical hereby grants the User the personal, non-exclusive and non-transferable right to access the eGD and to use and utilize it as intended for the intended purpose.

3.2          The User receives access to the health data entered by their patients via the eGD and, as soon as the Patient has granted the User the corresponding access rights, can subsequently retrieve, analyze, supplement with further medical information, but in particular also use this data for any medical treatment. Users can also communicate with their patients via the eGD and send them documents electronically.

3.3          The User shall take into account that the health data may also be made accessible only in part, for a limited period of time or until revoked, or with different authorizations and processing rights.

3.4          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 provisions there shall be deemed to have been agreed between the User and openmedical, if and as soon as a User has subscribed to eGD services from openmedical or has ordered goods and/or services from openmedical and openmedical has confirmed the subscription or order.

4.            Exclusion from the eGD service / offers from third parties

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 (see section D below4). In these cases, the respective provider is the sole contractual partner of the User on the basis of its contractual conditions. In this case, the openmedical service is limited to the provision of the eGD, insofar as this is relevant for the provision of the services of third parties. Services and offers from third parties are marked or recognizable as such.

5.            Technical requirements

5.1          The User is responsible for providing the technical requirements (IT system, if necessary also by using the "mednet patient" application for mobile devices, Internet access, etc.) for using the eGD after online registration.

5.2          The date, time, type of access and IP address of all accesses are logged on the eGD of the User.

5.3          Reference is made to the statements in the above sections B.4.3 f.

6.            Maintenance and further development

Reference is made to the statements in the above section B.8.

7.            User obligations

7.1          The User warrants that they only register a single, personal eGD for themselves and acknowledges that the opening of an eGD for third parties is not permitted. The opening is reserved within the framework of a legal right of representation.

7.2          The User undertakes to use the eGD only in accordance with the contract and for the intended purposes in accordance with sections C.1 and C.3 above. Reference is made to the statements in the above section B3.

7.3          It is in the User's own interest to ensure that the health data they enter and store in their patients' eGD is correct and complete. The User alone is responsible for the consequences of incomplete or incorrectly entered patient health data. This also applies in particular in the event that certain health data cannot be entered for technical reasons.

7.4          The User is responsible for deciding which other Users are granted access to their eGD. The User is aware that, and bears the full risk if, an access option can be misused by third parties and unauthorized persons can also gain access to their eGD if they obtain access data. It is the sole responsibility of the User to instruct and monitor these third parties accordingly or, if necessary, to withdraw their access. openmedical is not obliged to take action against other Users for any violation of these GTC.

8.            Fees and costs

8.1          The fees for using the eGD can be requested at support@openmedical.swiss.

8.2          Reference is made to the above section B.10.

9.            Intellectual property

9.1          The eGD or the software on which it is based is protected by copyright. All (intellectual) property or ownership rights as well as all property rights to the software and/or in relation to the eGD remain with novcom AG, Reinach (BL), CHE-398.697.236 (the Licensor). Reference is made to the statements in the above section B.9.

9.2          It is assumed that the other third-party content accessible via the eGD or made available by openmedical – with the exception of the individual health records on the eGD – is also protected by copyright, and their use, unless covered by these GTC, is only permitted with the written consent of the respective author and against payment.

10.          Guarantee and responsibility for content

10.1        To the extent permitted by law, openmedical rejects any liability for any direct or indirect damages incurred by the User in connection with the use of the eGD. This includes, in particular, damage due to the use of health data, damage due to transmission errors, technical defects, interruptions, disruptions, or unlawful actions of third parties.

10.2        The User and their patients are solely responsible for what 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 of the respective patient by the User or the patient themselves, in particular their correctness, completeness, up-to-dateness, legality, appropriateness and availability, as well as their suitability for a specific purpose. openmedical accepts no liability for any damage or consequential damage resulting from the aforementioned reasons. In particular, openmedical excludes any liability for damage or consequential damage caused by system interruptions or failures and is also not liable for data losses in the eGD. In this context, reference is made below to the statements in the above section B.12.

10.3        openmedical is in no way responsible for actions taken in relation to patients on the basis of the health data transmitted.

10.4        Reference is made to section B.13 for liability.

D.            Other general provisions

1.            Term and termination

1.1          The legal relationship between openmedical and the User or Users is concluded for an indefinite period, unless otherwise agreed between the Parties.

1.2          It can be terminated in writing by either Party with a notice period of six months to the end of one month, but at the earliest 12 months after the start of the contract. The termination can also be made by the User in their respective account.

1.3          The right of termination of the User in accordance with the following section E.3.2 is reserved.

1.4          openmedical has the right to terminate the contract extraordinarily and without notice for important reasons. An important reason is any circumstance that makes it unreasonable for openmedical to continue the cooperation until the end of the agreed notice period. Important reasons are primarily: (i) non-compliance with legal regulations by the User (ii) serious breach of contractual obligations by the User (e.g., misuse of the openmedical products, incorrect information when concluding the contract, default of payment of at least 60 days despite written reminder, infringement of intellectual property rights despite written warning) or (iii) damage to other Users by a User in a relevant manner. In this case, any remuneration is calculated pro rata temporis. Claims for damages remain reserved.

1.5          On the date of the effective date of withdrawal 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. At the same time, the User's right to the intended use of the openmedical products will expire. With regard to mednet, the User is expressly informed that they may no longer use it after termination of the legal relationship with openmedical and that they will otherwise infringe the Licensor's copyright.

1.6          Upon termination of the contract, the User is obliged to return the licensed material and all copies made thereof as well as all parts of the licensed material that have been modified or linked to other programs or data systems to openmedical within 30 days of termination of the contract or expiry of the license without being requested to do so, or to confirm their complete destruction in writing or by email. If the User does not comply with this obligation, openmedical has the right to charge them recurring usage fees until further notice. Any right of retention according to Art. 895 ZGB is waived. The User reserves the right to make a copy of the licensed material exclusively for statutory archiving purposes.

2.            Privacy policy

2.1          A separate order processing contract (https://openmedical.swiss/LegalResources/ABV_openmedical_AG_en.pdf) is concluded between the User and openmedical, within the framework of which the data protection conditions are defined.

2.2          For private individuals, i.e., persons who are not subject to professional secrecy and who use the eGD for private purposes, openmedical acts as the data controller within the meaning of the Swiss Data Protection Act. In addition, the rights and obligations described in the privacy policy (https://openmedical.swiss/LegalResources/DSH_openmedical_AG_en.html) apply to the data processing.

3.            Confidentiality

3.1          openmedical and the User shall treat third parties confidentially with regard to all facts that they have learned in the context of this contractual relationship and that are neither obvious nor generally accessible, and shall not make these facts accessible to third parties in any way or form. Such confidential information includes (in a non-exhaustive list) in particular all license material, but also other ideas, concepts and procedures associated with mednet and/or the eGD or the underlying software (in particular regarding the processing of data), business secrets of the Parties and all other information that is declared confidential by the disclosing Party. In case of doubt, facts must be treated confidentially, unless the other Party has obtained prior consent to their publication. Legal obligations to provide information are also reserved.

3.2          This confidentiality obligation already exists before the conclusion of the contract and continues even after termination of the contractual relationship.

4.            Marketing and advertising

openmedical is authorized to advertise information and/or offers of (further) own services and/or those of third-party providers within the framework of openmedical products. openmedical is authorized to inform Users at regular intervals or on special occasions by email about health-related services, offers and activities of openmedical or third-party providers and to access their personal data for this purpose.

E.            Final provisions

1.            Severability clause

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.

2.            Assignment and delegation

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.

3.            Amendments to the contractual conditions

3.1          openmedical reserves the right to adjust the contractual conditions, including their services or openmedical products, prices and/or these GTC, at any time and without giving reasons. The same applies to any order processing contracts (OPC) concluded between the Parties. Changes will be announced to the User via their respective mednet or "mednet patient" access and/or on the websites (https://www.mednet.swiss or https://www.mednetpatient.swiss) or in other suitable ways in electronic or other form and will come into force with their publication. At the same time, corresponding changes can also be communicated to Users personally via email to the email address provided by the User as part of the registration process.

3.2          If the User does not accept the changes, they have the option of terminating the contractual relationship with openmedical within 30 days of notification of the change in writing (formal signature) or via email to support@openmedical.swiss. Without written notification within this period, the changes shall be deemed to have been approved by the Users.

3.3          The GTC can be viewed and downloaded in the currently valid form in the User's mednet or "mednet patient" access or on the websites https://www.mednet.swiss or https://www.mednetpatient.swiss.

3.4          In the event of changes to openmedical's services (openmedical products), such as a replacement of the mednet and/or "mednet patient" products, openmedical will endeavor to replace the service provided to the User with equivalent products.

4.            Communications

4.1          Unless otherwise agreed in these GTC, all written communications from openmedical to Users can also be sent via email to the email address provided by the User as part of the registration process. They are deemed to have been sent and delivered upon sending.

4.2          There are no verbal ancillary agreements to this contract or to these GTC.

5.            Applicable law and jurisdiction

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          For all disputes arising from the legal relationship between openmedical and the User, the courts at the headquarters of openmedical are exclusively responsible. Mandatory courts of jurisdiction remain reserved. openmedical reserves the right to assert its claims before the competent court at the User's place of residence/business or before any other competent court.



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