§ 1 General
(2) The offer of the Provider is exclusively aimed at customers who are licensed in Germany for the therapeutic treatment of mental and psychological illnesses and have proven their accreditation (usually the licence to practise medicine) accordingly as well as those who are still in training in this respect but are already permitted to treat.
(5) To register for the use of the application, a valid e-mail address is required. After entering an e-mail address, the customer receives an e-mail with a confirmation code. Only when this code has been entered by the customer is it possible to use the application.
§ 2 Subject matter of the contract
(1) The Provider shall make the application available to the Customer to support the therapy of patients who are treated therapeutically by the Customer. The application contains functions for patient management, for appointment management as well as for the organisation of therapy content and for the diagnosis of mental illnesses. The application is neither suitable nor intended to replace a therapeutic treatment or a diagnostic or therapeutic decision. However, it does provide digital support for therapy.
(2) The source code of the application is not part of the subject matter of the contract.
(3) There is no entitlement to conclude a contract for the use of the application.
(4) The Application and its documentation shall remain the property of the Provider. The Provider shall remain the sole owner of all right, title and interest in and to the Application and the intellectual property rights associated with the Application, including, without limitation, copyrights, any patents, trade secrets, trademarks and other intangible rights.
(5) The provider is responsible for maintaining the application. This includes in particular the adaptation to changing legal regulations, provided that this is not associated with work that is unreasonable for the provider.
§ 3 Use
(1) The application can be used via the Internet and is made available to the Client via the website therapist.elona.app. In this case, access takes place using a standard web browser provided by the Client in the respective current version (cf. instructions for use). If an older web browser is used, there may be restrictions in the functionality of the application. Alternatively, the customer shall be given the option of downloading software that establishes secure access to the web application.
(2) The Provider shall keep available on its servers for retrieval by the Customer that data which the Customer has entered when using the application or which the software has generated during use.
(3) The customer also receives access via the application to those data of his patients that they have released for access by the customer. The Provider has no influence on which data the Client's patients release for access or on the quality of the data entered by the patients themselves.
(4) Under no circumstances does the provider adopt third-party content entered into the application as its own.
(5) The Provider shall carry out regular backups. Nevertheless, the customer is obliged to set up and maintain the necessary data backup precautions throughout the term of the contract. Unless the parties agree otherwise, the Provider may assume that the Customer has additionally backed up all data that it stores in the Application or that the Application has generated. In particular, the customer is responsible for any compliance with retention obligations under professional, commercial or tax law.
§ 4 Costs
Currently, the use of the elona therapy application is free of charge for therapists.
§ 5 Rights and duties of the user
(1) The use of the application by therapists is voluntary. However, if a therapy has been started using the application, it is recommended not to discontinue the use of the application during the treatment, unless there is a therapeutic recommendation to discontinue.
(2) Use of the application is permitted exclusively within the framework of the client's therapeutic activity. The customer is granted a simple and revocable right to use the application, which is limited in time to the term of this contract. A transfer or sub-licensing of the granted right of use is excluded without the consent of the Provider.
(3) The application and all content published via the website and software of the Provider (in particular the therapy supplementary information) are fundamentally protected by copyright. Copying, editing, redesigning, distributing, making available to the public as well as removing, suppressing or manipulating legal notices are generally prohibited. This also applies to the use of bots, scripts, plug-ins or other means for the automated false representation of user activities or storage of contents of the application.
(4) The customer shall ensure that all information which he provides within the scope of the use of the application and which is required for proper line provision by the provider is complete and correct. He shall also keep this information up to date during the entire term of the contract.
(5) Illegal actions and violations of applicable law are prohibited when using the application. Furthermore, the storage, publication, dissemination and making available of harassing, manipulated, youth-endangering (e.g. pornographic or glorifying violence), defamatory, discriminatory, inciting hatred, illegal, confidential or otherwise infringing the rights of third parties (e.g. personal rights or copyrights) is prohibited. This also includes the sending of abusive messages (spam) and the distribution of malware.
(6) The customer must create individual login data and a password before starting to use the service. He is obliged to protect the login and password and to protect them from unauthorised access by third parties. In the event of suspected misuse by a third party, the customer shall inform the provider of this without delay. As soon as the Provider becomes aware of the unauthorised use, the Provider will take the necessary steps to protect the user account. The Provider reserves the right to change the Customer's login and password in the event of reasonable suspicion of misuse; in such a case, the Provider shall inform the Customer thereof without delay.
(7) The customer is also obliged to cooperate in the clarification of attacks by third parties on the application, insofar as this cooperation is necessary.
(8) Use of the application is permitted exclusively via the web access provided via the Internet. The use of the backend servers by means of software other than the web-based application is not permitted.
(9) The customer is responsible for ensuring the availability of the hardware and software required for the use of the application as well as suitable secure internet access. In this context, the customer shall in particular ensure the secure transmission of personal data of his patients. Possible costs for the use of the internet are determined by the respective tariffs of the client's internet provider.
(10) The customer undertakes to refrain from all measures that endanger or disrupt the functioning of the application and not to access data to which he is not entitled. Furthermore, he must ensure that his information transmitted via the application and data posted are not afflicted with viruses, worms or other malware. The customer undertakes to compensate the provider for all damages resulting from the customer's failure to comply with these obligations and, in addition, to indemnify the provider against all claims by third parties, including lawyers' fees and court costs, which the third parties assert against the provider due to the customer's failure to comply with these obligations.
§ 6 Availability
(1) The application is generally available to the customer around the clock. However, technical work (such as troubleshooting, software maintenance or data backup) may lead to temporary restrictions. Technical work is generally carried out on weekdays between 21:00-06:00 or at weekends, unless this is not possible due to the particular relevance or urgency of the work. Insofar as this is possible, any troubleshooting work will be announced to the customer with a reasonable period of notice in the application or in text form.
(2) Availability within the meaning of the preceding paragraph exists if the essential functions of the application can be executed without prejudice to minor disruptions. Availability shall only be deemed not to exist if essential functions of the application cannot be used.
(3) Downtimes in which the availability of the application is suspended are not the responsibility of the Provider, in particular in the following cases:
(a) Downtime due to incorrect operation or use of the Application by the Customer;
(b) if the customer fails to comply with his obligations to cooperate in the elimination of faults;
(c) if the downtimes are due to circumstances beyond the control of the provider. These include, in particular, disruptions at third parties who are not acting as vicarious agents of the Provider, unlawful attacks on the Provider's infrastructure, (e.g. DoS attacks, attacks by malware and hackers) natural disasters, war or other forms of force majeure.
(4) The Provider offers online support and telephone support on a voluntary basis. The online support can be reached via the e-mail address email@example.com. The telephone support can be reached within the support hours (Monday to Friday, 9 a.m. - 6 p.m.) at 0211-8226866-0. The support is only responsible for providing advice in case of technical difficulties or questions regarding the use of the application. It does not provide medical advice and is also not a contact for enquiries, suggestions or complaints in connection with the therapy by the customer. A response to support requests is usually provided on working days within 24 hours of receipt of the request.
(5) Support by the Provider shall not be offered if the Customer has modified, adapted or supplemented the application itself or through third parties without consultation with the Provider.
§ 7 Use for therapeutic purposes
(1) Insofar as prognoses and risk assessments are created by the customer when using the application, their medical-therapeutic classification is the sole responsibility of the customer. Insofar as information about his patients is known to him which has not been entered into the application or which is not processed by it, he is obliged to also take this into account in his assessment.
(2) The Provider is not responsible for therapeutic decisions made by the Client based on the information and prognoses provided by the Application.
(3) The provider is entitled to temporarily block a customer's access if there is sufficient suspicion that the customer is violating the access restriction according to § 1 para. 2 or is otherwise abusing his/her therapeutic duties. The customer may avert this measure by submitting suitable evidence at his own expense. In the event of a proven violation of § 1 para. 2, permanent blocking of access is also possible.
§ 8 Data protection
(1) The Customer undertakes to observe the applicable data protection provisions when processing the data of patients. He will conclude an order processing contract with the provider, which is available for download on the website http://www.elona.health.
(2) The data processing by the Provider shall be carried out exclusively on the basis of the data protection notice for therapists, which is available on the website http://www.elona.health.
(3) In particular, the customer shall not enter any third-party personal data into the application or collect, store, use or transmit such data via other users unless the consent of the persons concerned or another legal basis exists.
(4) The Client shall not use or disclose to third parties personal data about Patients provided to it via the Application for any purpose other than the therapeutic offer provided by it, unless it has expressly agreed otherwise with the Patients.
(6) The obligations under this § 8 shall apply beyond the end of the contract.
§ 9 Liability
(1) The provider shall be liable for intent and gross negligence without limitation, but for slight negligence only in the event of a breach of material contractual obligations. In the event of a breach of such a material contractual obligation, the liability shall be limited in amount to the damage foreseeable at the time of conclusion of the contract and typical for the contract. Material contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. The above limitation of liability does not apply to liability for personal injury or liability under the Product Liability Act.
(2) The Provider shall not be liable for disruptions within the line network for which it is not responsible.
(3) The Provider shall only be liable for the loss of data in accordance with the above paragraphs if such loss could not have been avoided by reasonable data backup measures on the part of the Customer.
(4) Liability does not extend to impairments of the contractual use of the Provider's services caused by improper or incorrect use by the Customer.
(5) The above limitations of liability shall also apply mutatis mutandis in favour of the Provider's vicarious agents.
(6) The Provider is not liable for the legality, correctness of content, completeness, up-to-dateness, etc. of data entered by patients in the app for patients belonging to the application.
(7) The Provider assumes no responsibility for the accuracy, plausibility and completeness of data entered by Users, Patients or third parties into the Application or the App for Patients.
(8) The Customer undertakes to compensate the Provider for all damages incurred because actions of the Customer or data posted by the Customer violate statutory provisions or the rights of third parties and, in addition, to indemnify the Provider against all claims of third parties, including lawyers' fees and court costs, which such third parties assert against the Provider due to the Customer's failure to comply with these obligations.
§ 10 Warranty for defects
(1) The customer is aware that it is not possible to create software applications completely free of errors. Thus, the Provider does not owe complete freedom from errors, but only from errors that impair the use of the application in a significant way.
(2) If an error occurs during the use of the application, the Customer shall report this to the Provider immediately via the support service (see § 6 para. 5). Such an error exists if the application does not work in accordance with the service description or does not function properly in some other way, so that the use of the application is not possible or is restricted. Errors and faults will generally be rectified within a reasonable period of time. The Provider shall be entitled to provide the Customer with a substitute or workaround solution in the event of the necessity of extensive fault elimination measures. If the workaround solution covers the functional scope of the service description, the defect shall be deemed to have been remedied.
(3) In all other respects, the statutory warranty claims shall apply.
§ 11 Term of contract and termination
(2) The contract may be terminated by either party with three months' notice to the end of the month. However, termination is not possible before the end of the therapy of all patients who use the app in connection with the therapy by the client.
(3) Each party has the right to terminate the contract for good cause without observing a notice period. An important reason for the provider is in particular:
(b) the tortious act of the customer or the attempt to commit such an act (e.g. fraud);
(c) persistent (at least 2 weeks) disruption of service due to force majeure beyond the control of the Provider, such as natural disasters, fire, breakdown of mains through no fault of the Provider.
(4) Any notice of termination must be in writing. Notices of termination by fax or e-mail shall comply with the written form requirement.
§ 12 Final provisions
(1) A partial or complete transfer of the customer's rights from this contract to third parties is excluded.
(2) The customer is only entitled to set-off against the supplier with undisputed or legally binding counterclaims.
(4) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for all legal disputes is the place of jurisdiction of the provider. The provider is also entitled to sue at the customer's general place of jurisdiction.