General Terms and Conditions of Use (GTC) Vivité GmbH


Preamble

Vivité GmbH is a company under the management of doctors that has set itself the task of creating an International Health Document (IHD) for each patient. This file contains all important medical data (findings, risk analyses, operative reports, X-rays and much more) and is edited in accordance with international criteria to make personal data immediately available worldwide to the patients or to doctors.
In creating the personal Health Document, Vivité relies exclusively on a highly qualified medical team and uses state-of-the-art, continuously updated technology. Moreover, Vivité is intent on clear editing of patient documentation and updating the file with particular regard to the personal rights of patients and health workers.
The personal Health Document is a service provided by the following company:
Vivité GmbH
Kurfürstendamm 22
10719 Berlin, Germany
Tel.: +49 30 88772800
Fax: +49 30 88772811
info@vivite.de
www.vivite.de
Commercial Registry: Berlin, No. 158878
Executive Direction: Dr. med. Eckhard Löhde and Mr. Andreas Riedel
Tax no.: DE 814 580 981
– hereinafter referred to as “Supplier” –
and is intended for use by natural persons (patients or doctors)
– hereinafter referred to as “User” –


Art. 1 General Provisions

1. Only these General Terms and Conditions, hereinafter “GTC,” shall apply. The user’s terms and conditions shall not apply.
2. Supplier shall notified User of changes to these GTC in writing (letter, fax or e-mail). User is responsible for ensuring that the contact data provided to Supplier are up to date at all times. Notice of changes to these GTC shall be deemed delivered three days after dispatch to the last known address (i.e. postal address, fax number or e-mail address). If Supplier receives no objection to the changes from User within four weeks after delivery of the notice, the changes shall be deemed accepted. Supplier explicitly points out to User the right of objection and the consequences of maintaining silence.


Art. 2 Permission and Access to the International Health Document (IHD)

1. The contractual relationship that is the subject of these GTC is formed on the basis of the data submission from User via www.vivite.de, the acceptance of these General Terms and Conditions by User and the acceptance by Supplier. Supplier shall confirm acceptance of the data submission from User via e-mail.
2. Vivité reserves the right to reject the registration of any user without assigning any reason.
3. Permission to use the Vivité website is conditional upon the registration of User and the confirmation of this registration by Supplier. There is no legal entitlement to permission to use the website.
4. Supplier makes online content available exclusively to doctors and private persons. When a doctor wishes to access Vivité content, he must present a license to practice medicine or comparable qualification as proof.
A private person wishing to register on and access the Vivité website must enter a user name and password (these two elements are referred to in the following as “login data”). User names that violates the rights of any third party, in particular trademark or naming rights, are not permitted. Illicit or immoral names are likewise not permitted.
User is obligated to keep the login data in a safe place and to keep it secret. Transfer of the login data to third parties is generally not permitted. If User loses the login data or has reasonable ground for suspecting that the login data have been lost, User must report this fact to Vivité without delay. Vivité assumes no liability for damages resulting from the transfer or loss of the login data.


Art. 3 Right to Cancel and Consequences of Cancellation

1. User may cancel the present contract in writing (letter, e-mail, fax) within two weeks without assigning any reason.
2. This two-week cancellation period commences when User receives these instructions in writing, but not before Supplier has fulfilled the obligation to inform (Article 312c, Section 1, Bürgerliches Gesetzbuch, “BGB” and Article 246, Sections 1–2, Einführungsgestzbuch zum Bürgerlichen Gesetzbuch, “EGBGB”). The cancellation period shall be deemed observed if the notice of cancellation is dispatched within this period. User can send the notice of cancellation online or via e-mail to the following e-mail address: info@vivite.de.
Alternatively, User can send the notice of cancellation in a letter or fax to the following address:
Vivité GmbH
Kurfürstendamm 22
10719 Berlin, Germany
Executive Direction: Dr. med. Eckhard Löhde and Andreas Riedel
Fax: +49 30 88772811

3. In the event of a valid cancellation, each party shall restore to the other what it has received in performance of the contract, including any benefits (e.g. interest). If that which was received cannot be restored, or can be restored only in part or only in deteriorated condition, there may be an obligation to reimburse value.
4. Art. 312d Sec. 3 BGB applies accordingly.


Art. 4 Supplier’s Services

1. At the web address www.vivite.de, Supplier provides access to an Internet platform and a database in which all relevant medical data from patients are stored and professionally processed. The core of Vivité’s services is the International Health Document. Experienced doctors contracted by Supplier edit and regularly monitor this file that provides a comprehensive overview of User’s current health status.
2. Supplier enables User to submit all test results, medical findings and other health-relevant data and documents online, and/or to transfer them to the Supplier’s staff.
3. Supplier enables User to access this medical data over the Internet within the scope of User’s technological and operational capabilities.
4. If User is a doctor authorized by the Supplier’s staff, User can add these data online or transfer them to the Supplier’s staff.
5. In editing the International Health Document, Supplier checks the chemical and biological compatibility of User’s medications and checks for any interactions between them.
6. In case of emergency, Supplier is available to User by telephone at all times for information and consultation.
7. Supplier reserves the right to expand, reduce or modify the services offered by www.vivite.de at any time.


Art. 5 User’s Obligations

1. User undertakes not to abuse the goods and services offered by Supplier, and to use them within the scope of their intended purpose.
2. User is free to determine whether medical data is transferred to Supplier and which of the transferred data Supplier shall add to the IHD. When User transfers medical data to Supplier, User must ensure that these data pertain to User. Supplier do not verify the correct affiliation of the data to any User.
3. User is responsible for providing recent medical data. Supplier documents changes in the medical data.
4. Activities of User that are intended to interfere with, prevent, impede or delay use of Supplier’s Internet site are forbidden and can have consequences under both criminal and civil law. In particular, it is expressly forbidden for User:
- to install files with executable programs or scripts (e.g. CGI, PERL, or PHP formats), to distribute or install what is known as “junk mail,” “spam,” “viruses,” “worms,” “trojans” or similar content;
- to use “e-mail bombing” software or perpetrate “Denial of Service” attacks;
- to add copyright-protected materials without authorization.
Supplier expressly reserves the right to check transferred data for this type of content and to delete such data.


Art. 6 Payment

1. The fees for use of the services provided by Supplier are shown in the most recent price list. The fees listed include applicable VAT/sales tax. Fees are payable annually, in advance.
2. Payments can be made by credit card or direct debiting. Users who choose to pay by direct debiting must issue an appropriate authorization and inform Supplier of any changes in their bank data without delay.


Art. 7 Warranty/Liability

1. Supplier provides a warranty only under the following provisos:
a) The data processed and made available by Supplier on the website are based for the most part on information given and content transferred by User. Such data shall exclusively provide information for the individual Users. Supplier collects, checks, processes and adds the data transferred by User to the IHD with the utmost care. However, Supplier assumes no liability and gives no guarantee as to whether the content provided is correct, up to date or complete. In particular, Supplier assumes no liability and gives no guarantee that the transferred data do in fact pertain to the individual user and are medically correct and up to date.
b) Supplier is not liable for damages suffered by User due to the use of the IHD. For the event that any claim is made in future against Supplier by any third parties as a result of such damages, User now releases Supplier from all such liability.
c) Supplier undertakes to perform all necessary measures for ensuring that the content of the website is available at all times. However, Supplier assumes no liability for unavailability of the content due to external factors (environmental events, unforeseeable server failure, “hacker” attacks, etc.).
2. With the exclusion of damages to life, limb or health, damages resulting from breach of contractual obligations, and claims under the Product Liability Act (Produkthaftungsgesetz), Supplier’s liability is limited to intent and gross negligence, and to the amount of the damages foreseeable and typical for this type of contract. The same also applies to indirect consequential damages. This limitation of liability applies analogously for employees and vicarious agents of Supplier.
3. Supplier is not liable for the loss of data and its restoration, except in the event that the loss occurred although User took reasonable data security measures.
4. Supplier has no influence on the content of third-party websites and thus assumes no liability for the content of websites that User can reach using links found at the Vivité website. Supplier shall remove the corresponding link(s) forthwith if violations of the law are discovered.


Art. 8 Responsibilities

1. Supplier is a service provider pursuant to Art. 2 Line 1 of the Broadcast Media Act (Telemediengesetz, hereinafter “TMG”). As such and in accordance with general laws and regulations and the criteria listed herein, Supplier is responsible for its own content made available on the Vivité website.
2. According to the stipulations of Art. 8–10 TMG, service providers are not obligated to monitor the information they transfer or store, nor to search for illegal activities on their websites. However, obligations to remove or block the use of information in accordance with general laws and Art. 8–10 TMG remain unaffected, including in the case of non-responsibility of the service provider.


Art. 9 Data Protection

1. Supplier strives to ensure the greatest possible data security. Hence Supplier takes all legal, organizational and technical precautions to avoid or reduce the risks of improper collection, storage, processing and use of personal data that arise in conjunction with operation of the website.
2. Supplier stores personal data in encrypted form for the exclusive access of its staff or other authorized persons.
3. If User is a doctor authorized by Supplier, User has sole responsibility for observance of medical confidentiality and data protection, in particular vis-à-vis the patient. Supplier gives no guarantee and assumes no liability in this respect. If an authorized doctor transfers patient data to Supplier for addition to the IHD, Supplier implements the new data only if the doctor has confirmed in writing that he will observe medical confidentiality. If Supplier has not received such confirmation, Supplier is not obligated to process the transferred data nor to add it to the IHD.
4. Within the scope of registration, Supplier collects data from User in accordance with German legislation (Bundesdatenschutzgesetz and Teledienstdatenschutzgesetz). Without the consent of User, Supplier collects, processes and utilises exclusively such data as required by the contractual relationship, as well as for the use and invoicing of teleservices (user data and website usage).
5. User has a right of inspection on his personal data stored by Supplier at any time. By clicking on the Privacy Policy button, User can access and print privacy details (user consent; collection, processing and use of personal data by Supplier).


Art. 10 Rights, Intellectual Property

1. The Vivité logo, the database software used on Supplier’s website as well as the content and works made available on the Internet are registered trademarks and copyright-protected. The ancillary rights belong to Supplier. Their use outside the context of Vivité is not permitted. Insofar as third parties are entitled to rights, Supplier retains economic rights and rights of exploitation.
2. Contributions from third parties are designated as such. User shall publish only those materials to which he owns the copyright, or those to the publication of which the copyright holder has agreed in writing.
3. User maintains proprietary rights and ownership of copyright to all medical data transferred to Supplier, in particular to such documents as X-rays, ultrasound pictures, electrocardiograms, etc. Upon written request from User, Supplier shall delete and destroy this data forthwith.
4. User is not authorized to publish materials from Supplier, in printed or electronic form, without prior approval in writing from Supplier. This provision does not apply to personal and medical data for which User is the sole copyright owner.


Art. 11 Duration/Termination of Contract

The present contract is concluded for an indefinite period. Either party can terminate the contract at the end of a calendar year upon three months prior notice. In the event of termination, User’s registration expires and User loses the right to access Vivité Internet content. Furthermore, Supplier shall delete all data and completely destroy all documents relating to User immediately following expiration of the legally defined retention period.


Art. 12 Concluding Provisions

1. These GTC shall be governed exclusively by German law, to the explicit exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). In event of a dispute, the English version of this contract shall prevail.
2. Place of jurisdiction for all disputes is, insofar as legally permissible, exclusively Berlin. Supplier reserves the right to bring action in User’s location or city of residence.
3. In the event that any provision of these Terms of Use is found to be invalid or illegal, the validity of any of the remaining provisions shall not be affected. In this case, both contracting parties shall agree on a valid clause of similar intent and economic impact and substitute it for the invalid provision. The same shall apply if any provision is found to be lacking.