Terms Of Service

1 Welcome to the Medisanté Connected Care Service

 

Thank you for using our products and services (the “Service”). Medisanté Group AG (“Medisanté”) provides the Service and is located at Wesemlinrain 16, CH-6006 Lucerne, Switzerland.

 

Any legal relationship between the subscriber of the Service (“Customer”) or a consumer using devices connected to the Service (“User”) and Medisanté shall exclusively be governed by these Terms and Conditions of Service (the “Terms of Service”).

 

By using the Service, you are agreeing to these Terms of Service. Please read them carefully.

 

MEDISANTÉ CANNOT ACCOMMODATE ANY TERMS OF SERVICE OTHER THAN THESE, EVEN IF MEDISANTÉ HAS NOT EXPLICITLY OBJECTED TO THEM.

2 Using the Service

You must follow any policies made available to you within the Service.

These Terms of Service together with the Data Privacy Policy, and any other documents incorporated by reference, encompass access to and the use of our products and services, namely:

  • the ELIOT platform (Software as a Service),

  • a device connected to the ELIOT platform (“Connected Device”), and

  • if applicable, agency of third-party services.

 

Do not misuse the Service. For example, do not interfere with the Service or try to access the Service using any method other than the interface and the instructions that we provide. You may use the Service only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing the Service to you if you do not comply with our Terms of Service or policies or if we are investigating suspected misconduct.

 

The Customer may sell, lease, or rent the Service to its own Users, but remain liable to Medisanté for the subscription and Service fees.

 

Using the Service does not give you ownership of any intellectual property rights in the Service or the content you access. You may not disclose content from the Service to any third party unless you obtain permission from its owner or are otherwise permitted by law.

 

These Terms of Service do not grant you the right to use any branding or logos used in the Service.

 

Do not remove, obscure, or alter any legal notices displayed in or along with the Service.

 

3 Description of the Service

 

Medisanté offers various subscription plans for the Service which are published and periodically updated.

 

The Customer and its Users are the intended users of the Service. The Customer must obtain User consent to access and view the User´s personal health data on the ELIOT platform. Any health data provided by the User is technically and organizationally secured by Medisanté or its sub-processors.

 

The Service is intended to help Customers be more informed and proactive in managing the condition of remote Users by providing patient-generated health data in real-time for therapy support. It is not intended as a substitute for regular visits to a health care professional or verification and analysis of vital signs in a clinical setting.

 

A Connected Device allows patient-generated health data to be submitted and exchanged between Customer and User. As Administrator of the Service, Medisanté provides preventive maintenance, support, and troubleshooting activities for Connected Devices and the ELIOT platform. Medisanté may periodically develop and install patches, bug fixes, updates, upgrades, and other modifications to the Service. Such modifications may be done without notice or consent to maintain the Service at a top performance level.

 

Although Medisanté has conducted extensive testing of the Service, Medisanté is only a gateway provider and cannot guarantee the successful management of a User's condition or any medical results.

4 Registration and activation

 

A Customer who registers an account on the ELIOT platform is the owner of that account. When Users authorize Customers to access their personal health data, the Customers are responsible for their own actions relating to the Service. The Customer must:

  • provide explicit proof of the User’s consent to view their personal health data, and

  • inform the User that, if deemed necessary, the Customer may subsequently authorize other third parties to view their personal health data for therapy support.

 

By accessing or using the Service, you agree and understand that Medisanté may store, share, process and use data collected from the use of the Service. Medisanté works with other companies that help Medisanté provide the Service to you.

 

Any personal information collected relating to the registration for use of the Service is subject to the Data Privacy Policy of Medisanté. When using the Service, the Customer consents to reasonable action taken by Medisanté under such Data Privacy Policy. In the processing of personal data, Medisanté undertakes to comply with the provisions of the Swiss and other applicable European data protection laws.

 

Registration creates a Customer account identified by username and password. Customers are responsible for all activities that occur under their Customer account. Customers have sole responsibility for:

  • the confidentiality of the password and other user account information,

  • best efforts to prevent unauthorized access to, or use of, the Service, and prompt notification of any such unauthorized use, and

  • compliance with applicable laws when using the Service.

 

Medisanté may refuse activation of a Customer account for any valid reason set forth in the Law.

 

5 Term and Termination

 

The Customer may start using the Service upon successful registration and activation of the Service by Medisanté. From a Medisanté standpoint, the Customer may at any time cease using the Service, however the agreed obligation from the subscription plan remains unaffected.

 

These Terms of Service remain in full force and effect for as long as the Customer continues to access or use the Service, or until terminated in accordance with the provisions of these Terms of Service.

 

These Terms of Service are subject to reasonable revision and Medisanté will inform the Customer accordingly.

 

The Customer undertakes to inform, pass on any changes and likewise bind its Users. Any Customer may reject any affecting material change and discontinue use without cost, penalty, or cancellation indemnity by sending a 30-day notice to that effect upon becoming or having been made aware of such change. Continued use of the Service after this 30-day term amounts to acceptance of such changes.

 

Medisanté may suspend or terminate a Customer’s access to the Service for valid reasons and without any liability whenever such Customer:

  • is in breach of this Terms of Service, or

  • engages in any conduct that Medisanté determines, at its discretion, may have an adverse effect on Medisanté or its reputation.

 

A Customer may terminate the service for convenience upon written notice to Medisanté. Upon Customer termination for convenience, no refunds apply to any amounts for the remaining term.

 

Medisanté may terminate for convenience upon sixty (60) days written notice. Upon termination for convenience, Medisanté will refund any unused, prepaid fees for the portion of the remaining period, if applicable, using the same means of payment used for the original transaction unless the Customer expressly agreed otherwise. The Customer shall be responsible for any transaction costs associated with such refund.

 

Upon termination, the Customer will no longer have access to the Service and shall return equipment provided by Medisanté after the limited term, unless the Customer has purchased such equipment upfront, or has paid in full.

 

6 Service Fees, Billing, and Renewal

 

Service fees are due 30 days after the invoice date, unless otherwise agreed in writing. Please note that merely unpairing a Connected Device or not using or accessing the Service will have no impact on the subscription plan and the payment obligation remains unaffected.

 

Unless otherwise stated, all prices are exclusive of VAT, sales, or other similar taxes levied by the government of the Customer’s jurisdiction.

 

The Customer will maintain complete and accurate billing and contact information during the subscription period with Medisanté and will notify Medisanté about any inaccuracies on an invoice within 30 days after the invoice date.

 

Unless the Customer provides written notice of cancellation latest 30 days before the end of the subscription period, the latter will automatically be renewed

 

7 Intellectual Property Rights

 

In the event the Customer subscribes for a self-operated Medisanté Service, Medisanté grants the Customer the non-exclusive, non-assignable, right to use and operate the Service for integration in other Customer products according to and in compliance with the agreed license plan and term with Medisanté.

 

Except for the limited license and use rights expressly granted to you under this Terms of Service, all title to and the rights in the Service, including ownership rights to patents, copyrights, trademarks, trade secrets, Medisanté or third-party equipment, other technology, and any derivatives are the exclusive property of Medisanté and/or the applicable third party.

 

Any reproduction, publication, further distribution, or public exhibition of materials provided through the Service, in whole or in part, is strictly prohibited.

 

Except as expressly provided in this Term of Service, no part of the Service and no content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, distributed, or transmitted in any way (including “mirroring”) to any other computer, server, service or other medium for publication or distribution or for any commercial enterprise, without the express prior written consent of Medisanté.

 

Customers and Users are not permitted to use Medisanté’s company logo or its trademarks unless Medisanté has given prior written approval for such use.

 

 

8 Data protection and confidentiality of personal data

 

Medisanté, its group companies and authorized third party service providers process and protect the confidentiality of health data and personal data of the Customer and User provided or incurred with the use of or the performance of the Service. Processing of such data will be in compliance with standards of the European General Data Protection Regulation and applicable data protection law in the country of service.

Pursuant to art. 28 European General Data Protection Regulation (“GDPR”), the processing of personal data by Medisanté on behalf of the Customer requires a written agreement (“Data Processing Agreement”). The Customer hereby commissions Medisanté to process personal data on its behalf by concluding a separate agreement in accordance with the scope and the conditions of the annex “Contractual Terms and Conditions for Data Processing”.

 

Medisanté also collects personal data when the Customer or User submits it to us, through registration, completion of forms or emails, as part of an order for products or services, after-sale support for products or services, inquiries or requests about products being ordered and similar situations in which data subject has chosen to provide the information to Medisanté or via the Customer.

 

In the event that some personal data provided (name, address, phone number and email address) will be processed by Medisanté for marketing, advertising or promoting purposes it will be used as indicated in the Data Privacy Policy, as amended from time to time and incorporated by reference to these Terms of Service (privacy statement can be found on our website: www.medisante-group.com/privacy). We assume that this is of mutual interest for our Customer and the User to maintain a good business relationship. The respective data subject can object to the processing of his/her data for this purpose at any time without giving reasons by contacting Medisanté.

 

In the event that Medisanté is provided and receives personal data via the Customer or any other point of sale for such purpose described above, Medisanté is an independent controller under applicable data protection law.

 

As part of the processing of your personal data, some of the personal data provided may be stored or processed in other jurisdictions than the country the Service is made available, such as the United States, whose data protection laws may differ from this jurisdiction. In such cases, Medisanté ensures that appropriate security protections are in place to require the data processor in that foreign country to maintain protections on the personal data that are equivalent to those that apply in the country of service of Medisanté.

 

The Customer is obliged to inform any point of sale and its Users that it complies with applicable data protection law and personal data will be processed by Medisanté according to the terms and limitations set forth in these Terms of Service. The Customer shall, without limitation, defend, hold harmless and indemnify Medisanté in the event of damage that is attributable to the Customer's transferring of personal data or in breach of applicable data protection law.

 

Subject to the Data Privacy Policy, or in the Law, any other communication or material sent by the Customer through the Service, is deemed non-confidential. Medisanté is free to use ideas, concepts, and knowledge or techniques suggested by User questions and comments, for any purpose whatsoever, including but not limited to, developing, manufacturing, and marketing products.

 

The Customer is obliged and shall not during its contract with Medisanté or thereafter reveal or disclose any of Medisanté’s confidential information in whatever form (verbal, written, digital or embedded in hardware) made accessible or obtained by Medisanté to any third party, without Medisanté’s prior written consent. This confidential information includes competitive or proprietary data (i.e., business, technical, or financial information) or information a reasonable person would conclude is confidential.

 

No field in the Service is intended for professional storage and usage of patient identifiable information or personally identifiable information that can identify a patient such as, but not limited to, the patient’s full name, date of birth, address, email, phone.

 

Target systems in the Service can include subset entities or organizations. In the interest of maintaining pseudo-anonymity, the Customer is recommended to use non-identifiable or non-verified naming of organizations to describe organizations within the Service. Medisanté cannot be held liable for organization identifiable data entered into the Service.

 

The Customer should implement the following login security guidelines:

  •  The Service enforces passwords with a minimum length of eight characters, containing a combination of uppercase letters, lowercase letters and numeric digits

  • Additionally, the Customer should consider: 

  1. A passphrase, rather than password, longer than 8 characters

  2. Special characters

  3. For example: I'mNot6FtTall!

  • Do not share login credentials (username and password)

  • For accountability sake, use first and last names, instead of something like "Hospital Admin"

  • Do not leave yourself logged in on a public computer that is unattended by you. 

 

9 Documentation and Third-party Content

 

The information presented to users in the Service documentation and materials are solely for informational purposes. Medisanté makes reasonable efforts to maintain that information current but, other than information required to determine fitness for purpose, Medisanté does not guarantee that the content is complete or up-to-date.

 

Medisanté may provide access to third-party content, technology, or services (“third-party content”) as a convenience to the Customer. Medisanté does not endorse, recommend, or otherwise make any representations, or warranties with respect to such third-party content. Medisanté does not have any control or responsibility for such third-party content whenever clearly identified as such, and the patient is encouraged to review any applicable third party’s Terms of Service and privacy policies.

 

Medisanté also allows Customers to post content through social media. Users should be aware that any content they post is publicly available and is not confidential information. Medisanté reserves the reasonable right to delete Customer content posted in its accounts at its sole discretion.

10 Warranty of Connected Devices

 

Medisanté warrants that its Connected Devices are free from defects in quality and defects of title. In particular, Connected Devices shall meet the Service specifications and conditions and comply with any applicable statutory laws or governmental regulations or provisions in the country the Service is initially offered. All warranty claims by the Customer in connection with defects shall become statute-barred after 24 months or after the respective subscription term. The limitation period for defects shall commence when the Connected Device is delivered (passing of risk).

 

In the case of defects which were notified within a reasonable time since detection, we shall be obliged to either rectify the defect or replace the Connected Device free of defects. All further claims by the Customer, for example cancellation, reduction and compensation for damage and any consequential damage shall be excluded.

 

No defect claims may be asserted in the event of a customary and/or minor deviation from the agreed condition of the Connected Device or a minor impairment of the usability. Unless we have given an express written assurance, the properties of any supplied samples shall not be regarded as guaranteed if the supplied goods are suitable for their intended use.

 

Replaced Connected Devices and replaced parts shall become our property.

 

Claims for damages due to the following reasons shall be excluded:

  • natural wear and tear,

  • defects which occur after the passing of risk due to incorrect handling, storage or assembly, non-compliance with installation and operating instructions, or excessive loading or use,

  • defects which occur due to force majeure, especially outside influences not covered by the contract, or due to use of the goods outside their intended normal purpose according to the contract,

  • use in a country where that particular Service or Connected Device has not been made initially available by Medisanté, and

  • non-reproducible software defects.

 

Liability for defects shall not include defects which are attributable to design specifications of the Customer or devices contributed by the Customer. Defect claims may also not be asserted if the Connected Devices are changed by a third party or through the installation of foreign parts.

 

In the case of defective Connected Devices that were not branded with Medisanté, we may be released from our liability by assigning our own warranty claims against the supplier to the Customer.

 

11 Disclaimer and Limitation of Liability

 

Medisanté uses high care to maintain and update the Service supplied and to provide IT security. However, Medisanté has no responsibility to provide (automated) maintenance or support services with respect to the Service and Connected Devices. The Service is provided “as is” at the time of subscription and use of the Service is at the Customer’s own risk. Medisanté, its officers, directors, employees, agents, contractors, or third-party service providers specifically disclaim, whether expressed or implied, any warranty or assurance of uninterrupted functionality or availability of the Service, accuracy of data, or completeness. No oral advice or written information given by officers, directors, employees, agents, contractors, or third-party service providers of Medisanté will create a warranty.

 

If the Customer uses the Service or a User uses a Connected Device in a country where that particular Service or Connected Device has not been made initially available by Medisanté, you do so on your own initiative, you are solely responsible for complying with the applicable local laws in a foreign country, and you understand and accept that some or all of the features of the Service and Connected Device may not work or be appropriate for use in such a foreign country. To the extent permissible by law, Medisanté accepts no responsibility or liability for any damage or loss caused by your access or use of the Service and Connected Devices in a foreign country.

 

Except when the Law of the Customer’s jurisdiction mandates otherwise, Medisanté, its officers, directors, employees, agents, contractors, or third-party service providers disclaim liability for:

  • any amounts in excess of fees paid during the applicable term,

  • any damages arising out of actions or omissions that are not under Medisanté’s control, including but not limited to a patient’s decision to self-medicate, interrupt, or modify a prescribed treatment, based on such patient’s interpretation of vitals measured by the Service or information posted per Section 9 “Documentation and Third-party Content” above,

  • any damages arising out of the Customer’s use, excessive use, or inability to use the Service, including but not limited to reliance on any information obtained from the Service or malpractice, regardless of the form of action,

  • any damages arising out of the Customer’s reliance on any information provided by the Service or malpractice, regardless of the form of action,

  • any loss of or damage to data and any failure or damages due to cyber-crime, and

  • any indirect, special, or consequential damages.

 

Medisanté cannot be held liable for any losses or damages whatsoever from the unintended use of the Service, not limited to information governance.

 

12 Indemnity

 

The Customer agrees to defend, indemnify, and hold Medisanté, its officers, directors, partners, employees, contractors, agents, licensors, suppliers, and third-party service vendors harmless from and against any third-party or User claims, actions or demands, liabilities, malpractice, or product liability, including without limitation all reasonable legal fees, alleged to, or resulting from its use of the Service and Connected Devices.

13 Miscellaneous

 

The failure of Medisanté to enforce strict performance of these Terms of Service will not be construed as a waiver of any provision or any right to enforce, nor will any course of conduct be deemed to modify any provision of these Terms of Service.

 

The provisions of these Terms of Service are severable. The invalidity, in whole or in part, of any provision of these Terms of Service will not affect the validity or enforceability of any others. If any of the provisions of these Terms of Service are held void or unenforceable by final order of a court of competent jurisdiction to be, such provisions will be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the economic intent of these Terms of Service, so that these Terms of Service will remain in full force and effect. The Service may not be available to all persons or in all geographic locations. Any offer for any Product or Service is void where prohibited.

 

These Terms of Service, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Medisanté’s prior written consent. These Terms of Service may be assigned by Medisanté without restriction to another company of the Medisanté Group. These Terms of Service are binding upon any permitted assignee.

14 Governing law / jurisdiction

 

All matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of Switzerland without regard to any conflicts of law, provisions, or international treaties, including particularly the Vienna Convention on the Sale of Goods. The legal venue for all disputes arising from the contractual relationships shall be the courts responsible for Lucerne (Switzerland).

 

Lucerne, April 2022