General Terms and Conditions (GTCs)

of EMPERRA GmbH E-Health Technologies

General Terms and Conditions (GTCs)

of EMPERRA GmbH E-Health Technologies

§ 1 Scope of application and contractual basis

Emperra GmbH (hereinafter “Emperra”) provides all services in connection with the “ESYSTA” concept to the patient (hereinafter “Customer”) exclusively on the basis of these General Terms and Conditions (GTC). Deviating terms and conditions of the Customer shall not be recognized unless Emperra expressly agrees to their validity in text or written form.
Emperra is entitled to amend or supplement these GTC with a reasonable notice period. The Customer will be informed of such changes in text or written form in due time. If the Customer does not object to the amended or supplemented terms and conditions within six weeks of receipt of the notification, they shall become effective. If the customer objects in due time, both contracting parties shall be entitled to terminate the contract at the time at which the amended or supplemented terms and conditions are to come into force.

§ 2 Scope of Services

Emperra’s services include the delivery of the product components of the “ESYSTA” concept, the regular delivery of the disposable material required for use (adapters, measuring strips), as well as the transmission, storage and documentation of the data collected by the Customer in a central database.
The scope and characteristics of the product components are based on the current specifications. Insulin is not supplied by Emperra and must therefore be obtained by the Customer from a third-party supplier. Illustrations or drawings contained in brochures, advertisements and other offer documents of Emperra are only approximate unless the information contained therein has been expressly designated by us as binding.
The Customer shall be granted the right, limited to the term of the contract, to retrieve its customer data from the “ESYSTA” portal via the Internet and cell phone. The customer can also grant this right to third parties through his authorization. However, this does not establish a contractual relationship between the third party and Emperra. The Customer will receive personal access data (user name and password) for access to the “ESYSTA” Portal. The Customer must ensure that unauthorized third parties do not gain knowledge of these access data. Emperra shall not be liable for any damage resulting from improper storage or use of the access data by the Customer. This does not affect the liability according to § 8 of the GTC.
No liability is accepted for temporary unavailability of the “ESYSTA” Portal due to technical faults or other problems beyond Emperra’s control. This does not affect the liability according to § 8 of the GTC. Emperra reserves the right to temporarily restrict access to the services if this is necessary to avoid serious disruption to the network, the software or stored data.
The Customer is obliged to independently verify the accuracy of its data each time it provides personal or personal-related medical data (for example, when registering on the Internet portal or on handwritten forms). Emperra is not liable for damages caused by the deliberate or unconscious entry of incorrect or incomplete data by the Customer. This does not affect the liability according to § 8 of the GTC.

§ 3 Use of the “ESYSTA” portal by authorized third parties

Third parties who have been authorized by the customer to view the data from the “ESYSTA” portal (in particular doctors or medical professionals) will receive separate access data. The costs for the use of the “ESYSTA” portal are covered by the reimbursement from the health insurance companies.
The provision of access data to doctors or healthcare professionals is independent of any sales transactions between Emperra and the respective doctor/healthcare professional. In particular, the provision of the Access Data does not oblige the doctor or healthcare professional to prescribe, purchase or use Emperra products or to recommend Emperra and its products to patients or other third parties. There are no expectations in this respect.
The authorization may be revoked by the Customer at any time. The third party must ensure that unauthorized persons do not gain knowledge of its access data.
Authorized third parties undertake to maintain secrecy and confidentiality with regard to all data made accessible. In addition, reference is also made to the confidentiality obligation under criminal law for doctors and their professional assistants (§ 203 paragraph 1 no. 1, paragraph 3 sentence 2 StGB).
Emperra expressly points out that the use of the “ESYSTA” portal is not sufficient as the sole basis for treatment. In addition, § 5 paragraphs 1 and 2 (use for health and medical purposes) and § 8 (liability) also apply to the authorized third party.

§ 4 Duration of contract and termination

The contractual relationship is concluded for an indefinite period. It can be terminated by either party without giving reasons and without notice to the end of a month.
Notice of termination must be given in writing or text form.
Either party may terminate the contract for good cause.

§ 5 Use for health and medical purposes

It should be noted that the “ESYSTA” portal only serves as a tool for logging and documenting the measured values. The “ESYSTA” concept can in no way replace medical care and therapy. The customer must continue to coordinate any change in therapy with his or her attending physician. Emperra is not liable for any health complications resulting from incorrect therapy. This does not affect the liability according to § 8 of the GTC.
Treatment, in particular the coordination of insulin therapy, should not be determined solely on the basis of measurement data from the “ESYSTA” portal. The accuracy of the measurement data determined and stored by the “ESYSTA” concept should be checked regularly by additional measurements.
The customer is responsible for the correct determination of the data using the “ESYSTA” measuring devices. In particular, he is obliged to read the operating instructions supplied carefully and to observe them. No liability can be accepted for incorrect operation of the “ESYSTA” product components by the customer. This does not affect the liability according to § 8 of the GTC.

§ 6 Data protection

Emperra declares its commitment to the protection of customer data in a separate declaration.
The Customer consents in a separate declaration to the collection, processing and disclosure of its personal and special personal data. This declaration becomes part of the contract.

§ 7 Warranty

Emperra warrants that the delivered product components and disposable materials are free from material defects and defects of title. The warranty period for consumers is two years and begins with the delivery of the purchased item.
Emperra only provides a guarantee if this has been expressly given in writing or text form.
The warranty period is otherwise 12 months.
In the event of a warranty claim, Emperra reserves the right to replace the product components with equivalent successor models. These may show changes in design and operation.

§ 8 Liability

Emperra shall only be liable for damages if it or one of its vicarious agents has breached a material contractual obligation in a way that jeopardizes the purpose of the contract or if the damage is due to gross negligence or intent on the part of Emperra or one of its vicarious agents. There shall be no further liability claims against Emperra, irrespective of the legal nature of the claims raised. This shall not affect Emperra’s liability under the German Product Liability Act and liability for damage to life, body and health and for guarantees.
If the culpable breach of a material contractual obligation is not grossly negligent or intentional, Emperra’s liability shall be limited to the damage that was reasonably foreseeable at the time the contract was concluded.
Emperra shall not be responsible for disruptions in the transmission network of Vodafone D2 GmbH and other network operators or failures of other communication networks not operated by Emperra. Emperra shall not be responsible for delays in performance due to the failure of communication networks. This also applies to bindingly agreed deadlines.

§ 9 Consumer’s right of withdrawal

If the Customer is a consumer and has concluded a contract with Emperra using exclusively means of distance communication, in particular by telephone, e-mail or fax, or via Emperra’s website, the Customer is entitled to revoke his declaration of intent to conclude the contract within 2 weeks without giving reasons. The period begins at the earliest on the day after receipt of the goods, if the consumer has already received this revocation instruction in text form at this time. The revocation is made by returning the goods to Emperra GmbH, Friedrich-Ebert-Straße 33, 14469 Potsdam, Germany, or by a declaration in text form to Emperra. The timely dispatch of the revocation or the goods is sufficient to meet the deadline.
Goods that can be sent by parcel post must be returned to Emperra GmbH, Friedrich-Ebert-Straße 33, 14469 Potsdam, at Emperra’s expense and risk. Notwithstanding the above, the customer shall bear the regular costs of returning the goods if the gross purchase price of the goods to be returned does not exceed EUR 40.00 or if, in the case of a higher price, the customer has not yet provided the consideration or a partial payment at the time of revocation, unless the goods delivered do not correspond to those ordered. Goods that cannot be sent by parcel post will be collected from the customer.
In the event of effective revocation, Emperra shall refund any purchase price already paid to the customer. If the customer is unable to return the goods received in whole or in part or only in a deteriorated condition, the customer shall pay compensation for the loss in value, even if the deterioration is due to the intended use of the goods. The reduction in value may correspond to the total purchase price. The customer can avoid a reduction in value in particular by not using the goods like an owner and refraining from doing anything that could impair their value.
The customer’s right of termination under § 3 remains unaffected.

§ 10 Miscellaneous

The prices include the statutory value added tax. Packaging and transportation costs are only included if a separate agreement has been made in this regard.
Unless otherwise agreed in writing, one-off and recurring claims for payment are to be settled without deduction within 14 days of receipt of the invoice by the customer.
Delivery dates or deadlines are exclusively non-binding, unless they have been expressly agreed as binding.
Emperra is entitled to make partial deliveries and render partial services at any time, provided this is reasonable for the Customer.
The Customer shall only be entitled to set-off against Emperra’s claims if its counterclaims have been legally established, recognized by Emperra or are undisputed.
The delivered goods remain the property of Emperra until all claims arising from this contract have been paid in full.

§ 11 Applicable Law

This Agreement shall be governed by German law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

§ 12 Place of jurisdiction and place of performance

Place of jurisdiction and place of performance is, as far as legally permissible, Potsdam.

§ 13 Severability

Should a provision of this contract be or become invalid or should the contract contain gaps that need to be filled, this shall not affect the validity of the remaining provisions. The parties agree to replace the invalid provision or omission with a legally valid and enforceable provision that comes as close as possible to the economic purpose of the agreement and that would have been agreed by the parties had they been aware of the invalidity of the provision.

Copyright by Empera GmbH E-Health Technologies 2019. All rights reserved.

Copyright by Empera GmbH E-Health Technologies 2019. All rights reserved.