on Use of the “DERManager” Application
– Rev. 00-
1. GENERAL REMARKS
1.1 The “DERManager” application (hereinafter “application”) is made available by HEINE Optotechnik GmbH & Co. KG, Dornierstr. 6, 82205 Gilching (hereinafter “HEINE”, “we”, “us”, “our”). The terms of this agreement (hereinafter “agreement”) regulate the mutual rights and obligations of the user (hereinafter “user”) and HEINE with respect to use of the application.
1.2 The application may only be used by entrepreneurs within the meaning of section 14 German Civil Code (BGB). The application may not be used by consumers within the meaning of section 13 BGB.
2. SUBJECT OF THE AGREEMENT
2.1 The subject of the agreement is the use of the cloud application and/or smartphone app within the scope of a subscription. The easy-to-use smartphone app enables the systematic collection and processing of dermoscopic image data from dermoscopes which are placed on a smartphone via the smartphone. Multiple users can record such image data as part of their normal workflow using multiple smartphones and assign these data to specific individuals. Via the cloud application, the image data can then be accessed, managed, archived or erased using a laptop, PC or tablet. This is “software as a service”. The application data is stored in a cloud. “Application data” in this sense refers to all data entered into the application by the user or collected by the user with the help of the application. Application data can include personal data. “Personal data” means all information relating to an identified or identifiable natural person within the meaning of Art. 4 No. 1 GDPR.
2.2 NOT A MEDICAL PRODUCT: NEITHER THE SMARTPHONE APP NOR THE CLOUD APPLICATION ARE MEDICAL PRODUCTS. HEINE EXPLICITLY POINTS OUT THAT THE SMARTPHONE APP AND CLOUD APPLICATION, AS WELL AS THE USE THEREOF, ARE NOT INTENDED TO REPLACE AND/OR PROVIDE MEDICAL ADVICE OR A MEDICAL DIAGNOSIS. THE USER SHALL BE RESPONSIBLE FOR ANY MEDICAL DECISION AND/OR TREATMENT.
2.3 The user shall receive a user/operating manual for the application on the corresponding website.
3. CONCLUSION OF THE AGREEMENT
3.1 The agreement on use of the application only comes into effect once this has been confirmed by HEINE in text form and the relevant login details have been sent to the user. Neither the receipt of the order by HEINE nor any confirmation that the order has been received constitute acceptance of the contract. There is no legal entitlement to use of the application. HEINE is entitled to decline to enter into a contract on use of the application without citing reasons for doing so.
3.2 The user shall receive login details from HEINE upon conclusion of the agreement. The smartphone app is available for free download in the Apple App Store and the Google Play Store. Login details must be entered in order to use it. The cloud application can be accessed via the URL specified to the user by HEINE. Again, login details must be entered in order to use it. The user is obliged to ensure that the login details remain confidential, to refrain from disclosing them to third parties and to protect them by means of appropriate technical and organisational measures. The user shall notify HEINE without delay if these login details are misused or lost, or if it has reason to believe that such has occurred.
4. RIGHTS TO THE APPLICATION
4.2 Changes of any kind to the application and/or any use of the application other than its intended use as set out in the user/operating manual are expressly prohibited. In particular, the user does not have the right to modify, develop, reproduce, distribute, exchange and/or otherwise use and exploit the application or parts thereof, nor does it have the right to combine the application or parts thereof with other works or create derivative works therefrom.
4.3 The user may only grant access to the application to individuals belonging to its own organisation. It is prohibited for the user to enable third parties outside of its own organisation to use the application.
5. REMUNERATION / TERM / TERMINATION / BILLING PERIOD
5.1 The subscription is for an unlimited period.
5.2 The subscription billing period is always one month, as from the start date of the subscription. The user is obliged to pay HEINE the agreed monthly subscription fee. The subscription fee is based on the number of images processed in the application; the number of persons authorised to access the application or the number of devices used do not have any bearing on this. HEINE will notify the user of the prices and available payment methods prior to concluding the agreement. Billing always takes place on the first day of the new billing period for one month in advance.
5.3 For accounting reasons, EUR 0.01 shall be payable for the first month. If the agreement is terminated within the first month, no additional costs shall be due.
5.4 Following the first month, the subscription may be terminated, subject to a notice period of one week to the end of the current billing period.
5.5 If the user defaults on a payment for one week or longer, HEINE is entitled to block the user’s access to the application until the owed payment has been made.
5.6 HEINE may terminate the agreement with immediate effect and without observing a notice period if the user breaches this agreement.
5.7 Both parties’ rights to termination for good cause in accordance with the legal provisions remain unaffected.
5.8 The user must declare its intention to terminate the agreement in text form. HEINE also allows users to terminate the agreement via the HEINE online store. Simply deleting the smartphone app from a terminal device does not constitute a declaration of termination.
5.9 If the user reaches its tariff limit (e.g. small, medium or large), the user can continue to use the application but cannot add any more recorded data. It may upgrade its tariff to the next highest model or erase recorded data to regain full functionality.
6. DATA / DATA SECURITY / DATA PROTECTION
6.1 The user is the controller under data protection law and must comply with the data protection regulations applicable to it.
6.2 The data will be stored via cloud. It will be redundantly stored in several locations to prevent data loss.
6.3 Data is currently backed up in a certified, high-security data centre in Munich, Germany. HEINE reserves the right to change the data centre. In this case, the new data centre must provide the same level of security and be located within the territory of the member states of the European Union (EU) or the European Economic Area (EEA).
6.4 The user may request that its data be supplied to it during the subscription period. The data will be supplied by HEINE as a copy in an appropriate format. The cost of this is EUR 150 – 350 depending on the volume of data.
The user may also request that its data be supplied to it within a period of one month following cancellation of the subscription. The data will be supplied by HEINE as a copy in an appropriate format. The cost of this is EUR 150 – 350 depending on the volume of data.
6.5 Upon termination, the data in the cloud will be irretrievably erased, unless otherwise explicitly agreed by the user and HEINE and/or HEINE is legally obliged and/or legally entitled to retain the data for longer. The erasure will take place within a one-month transition period.
6.6 HEINE assures that it will not access the data in the application unless the user gives its consent for the data to be accessed in the provision of a requested technical support service. The user itself is obliged to protect the data resulting from use of the application from access by unauthorised third parties and to comply with the data protection provisions applicable to it.
HEINE’s access to data is limited to the scope set out in the processing agreement.
6.7 In accordance with Art. 13, 14 GDPR, the user must inform those using the application that their personal data will be processed.
6.8 Further details of the processing of personal data by HEINE in connection with the application are regulated by the processing agreement within the meaning of Art. 28 GDPR, which is to be concluded between the user and HEINE prior to the conclusion of this agreement.
7. TECHNICAL REQUIREMENTS / UPDATES / SUPPORT / AVAILABILITY
7.1 To use the smartphone app on devices with the iOS (Apple) operating system, the operating system version used by the iOS device must be the same as or newer than that specified by HEINE in the Apple App Store. To use the smartphone app on devices with the Android operating system, the operating system version used by the Android device must be the same as or newer than that specified by HEINE in the Google Play Store. An internet connection is required to use the application, whether on a smartphone or via the cloud.
7.2 Updates to the application (hereinafter “updates”) will be made available online and require an active internet connection. Updates for the smartphone app are made available in the stores from which the smartphone app can be downloaded. To ensure optimal use from a technical standpoint, we recommend that the user always keeps the application up to date by downloading any available updates. “Updates” shall essentially only include adjustments for maintaining the guaranteed performance specifications (e.g. security patches, bug fixes, changes for adjusting to new/different hardware or to new/different operating systems and other improvements that do not significantly alter the functionality and structure of the software), but not the addition of new features.
7.3 HEINE reserves the right, subject to observance of a reasonable notice period, to discontinue updates for outdated platforms (e.g. browser, operating system or smartphone) or modules if excessive effort is required in order to maintain them. In this event, the user must switch to an up-to-date platform, by changing the browser, operating system or smartphone that is used, for example, if they wish to benefit from further updates. The user shall bear any costs incurred in this regard.
7.4 Unless otherwise stated or agreed, HEINE will not provide any support service or the like. However, a support service can be arranged in individual cases for certain requests, subject to payment of a fee.
7.5 The application is generally available 7 days a week and 24 hours a day, except for periods when maintenance work, e.g. data back-ups or system and programme maintenance, is being carried out on the system or database. Notification of such work will be given, specifying an appropriate lead time in consideration of the problem in question, and, if possible, will not take place during the main periods of use, i.e. outside of the usual operating and business hours in Gilching, Germany. The smartphone app and cloud application both achieve at least 95-percent availability per month.
8. ADDITIONAL OBLIGATIONS OF THE USER
8.1 The user must
ensure that the application is suitable for its specific objectives and purposes
procure the necessary hardware and application environment for use of the application where required and
follow the instructions for use/operation etc.
8.2 The user is obliged to take all necessary measures to prevent unauthorised third parties from obtaining its login password and/or accessing the data. The user’s administrator password can be reset via HEINE’s technical support service, subject to payment of a fee. Passwords for the user’s organisation can be reset by the administrator.
8.3 If the user is held responsible by third parties for an infringement of rights resulting from use of the application, the user must inform HEINE without delay regarding the asserted claims and agree upon the further course of action in consultation with HEINE.
9. LIABILITY FOR DEFECTS / WARRANTY
The user’s (warranty) rights in the event of defects are determined by the legal provisions.
10.1 HEINE’S LIABILITY FOR DAMAGES, REGARDLESS OF THE LEGAL GROUNDS FOR SUCH, IS LIMITED IN ACCORDANCE WITH THE FOLLOWING PROVISIONS:
10.1.1 HEINE IS LIABLE IN ACCORDANCE WITH THE STATUTORY PROVISIONS IN THE EVENT OF INTENT AND GROSS NEGLIGENCE, IN THE EVENT OF CULPABLE INJURY TO LIFE, LIMB AND HEALTH, IN ACCORDANCE WITH THE PROVISIONS OF THE PRODUCT LIABILITY ACT, IN THE EVENT OF FRAUDULENT INTENT, AS WELL AS WITHIN THE SCOPE OF ANY GUARANTEE ASSUMED BY HEINE FOR GUARANTEED CHARACTERISTICS AND OTHER MANDATORY STATUTORY LIABILITY.
10.1.2 INSOFAR AS NONE OF THE CASES SET OUT IN CLAUSE 10.1.1. APPLY, HEINE IS LIABLE IN THE EVENT OF SIMPLE (I.E. NOT GROSS) NEGLIGENCE OF MATERIAL CONTRACTUAL OBLIGATIONS TO THE EXTENT OF DAMAGES TYPICALLY FORESEEABLE AT THE TIME THE CONTRACT WAS CONCLUDED. MATERIAL CONTRACTUAL OBLIGATIONS ARE THOSE WHICH MUST BE FULFILLED TO ENABLE PROPER EXECUTION OF THE CONTRACT AND UPON THE FULFILMENT OF WHICH THE USER RELIES AND MAY RELY (“CARDINAL OBLIGATIONS”). HEINE IS NOT OTHERWISE LIABLE IN THE EVENT OF SIMPLE NEGLIGENCE INSOFAR AS NONE OF THE CASES SET OUT IN CLASE 10.1.1. APPLY.
10.1.3 EXECEPT IN THE CASES SET OUT IN 10.1.1., HEINE IS NOT LIABLE FOR LOSS OF PROFIT, MISSED SAVINGS, DAMAGES RESULTING FROM THIRD-PARTY CLAIMS AND OTHER INDIRECT AND CONSEQUENTIAL DAMAGES.
10.2 THE LIABILITY LIMITATIONS SET OUT HERE IN CLAUSE 10 SHALL APPLY ACCORDINGLY IN FAVOUR OF THE PERSONS ACTING ON BEHALF OF HEINE.
11.1 This agreement exclusively applies to use of the application by the user. No deviating, conflicting or supplementary agreements have been made. The user’s general terms and conditions shall only become an applicable contractual component if and to the extent that HEINE has explicitly agreed to this in written form.
11.2 Should a provision of this agreement be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision is to be replaced by a contractual regulation that most closely reflects the purpose of the contract and the wishes of the contracting parties.
11.3 HEINE is entitled to amend this agreement with effect for the future, provided that the amendments do not involve any significant disadvantages for the user (e.g. restriction of the application’s functionalities, extension of the notice period for the user), or if such are necessary as a result of changes in legislation or case law. The user will be notified of any intended change via e-mail. The change in question will come into effect if the user does not object to it within a period of two months following receipt of the e-mail. The two-month period shall be deemed complied with provided that the objection has been dispatched prior to this deadline.
11.4 THE LAW OF THE FEDERAL REPUBLIC OF GERMANY APPLIES WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS AND THE LAW OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 1980. THE PLACE OF JURISDICTION FOR ALL DISPUTES ARISING FROM OR IN CONNECTION WITH USE OF THE APPLICATION IS THE REGISTERED OFFICE OF HEINE.
As at: February 2022