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Terms & Conditions

Carealytix Digital Health GmbH

Terms of service

Version from 30th September 2020

Table of contents

1. SCOPE

1.1 The product

1.2 Validity of our Terms of Service

1.3 Third party providers

2. DATA PRIVACY

3. CONTRACT CONCLUSION AND REGISTRATION

       3.1 Acquiring and paying for our products

       3.2 Registration and unlocking

       3.3 Conditions for redeeming vouchers

4. RIGHT TO WITHDRAWAL AND REVOCATION

4.1 Information about exercising the right to revocation

5. USE OF OUR PRODUCTS

5.1 Duration of use and termination

5.2 Ban and exclusion

5.3 Licence and granting rights

5.4 Availability of our products

6. YOUR BEHAVIOUR

6.1 General

6.2 Misuse

7. OUR RESPONSIBILITY

       7.1 Liability

7.2 Guarantee rights

7.3 Software development / maintenance

8. FINAL PROVISIONS

       8.1 Choice of law

8.2 Jurisdiction

8.3 Miscellaneous

These Terms of Service are available in the respectively valid version on our website www.miku-app.com

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1. SCOPE


1.1 The product

1.1.1 We,

Carealytix Digital Health GmbH

Hohendilching 3

83626, Valley, Germany

[email protected]

Munich commercial register: HRB 259543


Carealytix Digital Health GmbH („Carealytix“) develop and operate a mobile application ("Miku app", "Miku" or "app") for chronic kidney patients in end stage renal failure (dialysis patients). Carealytix is a Digital Health company and would like to offer dialysis patients support in minimising the hurdles and problems of day to day life while in treatment. We provide solutions with our products and services which are intended to simplify daily dialysis management.


1.1.2 Our product scope includes the provision of information and content which has been compiled according to the best knowledge and conscience and with great care from both internal and external sources. Nonetheless, we would like to expressly indicate that our products and services are exclusively for your information and raising your awareness, they cannot replace consultation and diagnosis by a doctor. Under no circumstances does Carealytix issue medical treatment recommendations or medical consultation of any kind. We recommend contacting a doctor for questions regarding disease and treatment. The evaluation and technical interpretation of any data represented in the products is solely incumbent on you and your nephrologist or dietician. All contents – regardless of whether they are made available by Carealytix itself, our cooperation partners or users – are neither to be understood as a supplement nor a replacement for information from a doctor or chemist. A doctor or chemist should under no circumstances make any treatment decisions on the basis of Miku, as the products in their current product state are explicitly no medical products and do not fulfil any intended medical purpose, rather they are solely for education and documentation.


1.1.3 Miku offers you products (‘apps’) and services for managing your day to day life with dialysis (or that of your partner or relatives). For the sake of simplicity, all – current and future – apps and services (including new versions, updates and other improvements) which Carealytix makes available, regardless of the type, are hereafter jointly referred to as ‘products’ or individually as the ‘product’. Every person who acquires one or more of our products will hereafter be referred to individually or jointly as ‘users’. Insofar as natural people in these Terms of Service refer to the male form, this applies equally to all people.


1.1.4 The following term definitions for individual products apply in connection with these Terms of Service:

Apps

Miku Free is an independent mobile app for your smartphone or tablet to document your day to day life as a dialysis patient. Our basic version of the Miku app only includes a selective or limited choice of functionality (‘product features or features’).

Miku Premium is the designation for the unlimited, full version of the Miku app. Miku Premium is fee-based and offers an extended number of additional functions which you can use to gain even better control of your day to day life with dialysis.

Services

Carealytix does not yet offer any services for dialysis patients.

1.2 Validity of or Terms of Service

1.2.1 We offer all products solely on the basis of these Terms of Service, globally in the respectively valid version. Contradictory Terms of Service or other Conditions for Use are expressly refuted by Carealytix

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1.2.2 Please note that before the first use of our products, you must agree with these Terms of Service as well as all declarations and agreements which are referred to therein and accept these for all further use. The registration and use of our products without agreeing to our Terms of Service is prohibited.

1.2.3 We expressly reserve the right to future adaptations and technically justified changes to our Terms of Service. Adaptations may be necessary in order to meet statutory requirements, correspond to technological and economic efficiency or to satisfy the interests of our users. Such changes are possible at any time and we will inform you of these in an appropriate manner before they come into effect, whereby every user can object in writing within a month of being informed. If there is no objection, the further use of our products is subject to the respective new Terms of Service. The user is notified in particular of the anticipated importance of his behaviour before the period begins.

1.3 Third party providers

1.3.1 Our products can be found in app stores. Here, the Terms of Service of the respective third party provider (over which we have no influence) generally apply; these are neither a component of our Terms of Service, nor of our contractual relationship with you as a user of our products. The same applies for the Terms of Service of your device or mobile service provider.

1.3.2 We work together with various third party providers to enable the optimum use of our product. Where necessary, we either refer expressly to the applicable Terms of Service of a third party provider, or you must accept such Terms of Service in any case before use in connection with the third party is possible.

1.3.3 The regulations on data privacy, data security and personal data are dealt with and explained in detail in our Data Privacy Policy.

2. DATA PRIVACY

We are aware of the great responsibility that comes with your use of our products; because you are not only providing us with general data about yourself, but also data about your state of health. In our Data Privacy Policy, we provide information about the use and protection of your data in connection with the use of our products, as well as about the consent required from you for this.
WITHOUT your STATUTORY DATA PRIVACY CONSENT TO PROCESS DATA IT IS NOT POSSIBLE TO USE THE PRODUCTS LEGALLY AND FACTUALLY.
Our Data Privacy Policy is not a component of these Terms of Service, rather it serves solely to provide you with information according to the General Data Protection Regulation, on the basis of which you issue your consent for the necessary data processing.

3. CONTRACT CONCLUSION AND REGISTRATION

3.1 Acquiring and paying for our products

3.1.1 Our products can be acquired in various ways

Apps

App stores (such as Apple App Store/iTunes or Google Play) offer our products. Please note that the app stores have their own Terms of Service which apply for the acquisition (but not the use) of our products and a user account may be a prerequisite.
Vouchers for our products are also available and can be redeemed in the respective app stores (cf. 3.3).

3.1.2 Our fee-based product can also be acquired from app stores. It is invoiced via the app store’s user account under the stipulated payment options. In this case, the respective app store acts either as a mediator and payment service provider for Carealytix, or as a direct vendor. In any event, you can always contact us at [email protected], should you experience problems with the download or payment.


3.1.3 User fees or purchase prices (including statutory VAT) are – depending on the offer and selection – to be paid once or recurrently (i.e. monthly, bi-annually or annually). The current fees are shown in our app or in the app stores and are immediately due for payment.

3.1.4 We expressly reserve the right to restrict, completely remove or charge for free of charge products at anytime. No future legal claim can be derived from the free of charge use of individual products or parts thereof for a certain period.

3.1.5 Moreover, Carealytix can make special or free of charge offers which may be subject to additional conditions or restrictions. In this context, we expressly refer to any deviations from these Terms of Service, whereby otherwise, the full contents of these Terms of Service remain applicable. Special or free of charge offers cannot be transferred to other users.

3.2 Registration and unlocking

3.2.1 Your registration in our Miku app is a prerequisite for the use of our products. As soon as you activate our product for the first time, you must register with an e-mail address and password (Miku ID). Each user may only create one Miku ID and each Miku ID may only be used by one user.

3.2.2 With registration, the user declares his binding offer to conclude a contract with Carealytix for the use of our products on the basis of these Terms of Service in the respectively valid version, which we expressly accept, however at the latest when releasing your Miku ID or by sending ordered goods.

3.2.3 The unlocking will be confirmed with you directly after successful registration in a separate e-mail. We reserve the right to reject individual users or their offer to conclude a contract without providing a reason. In such a case, any payments already made will be reimbursed and the transferred data of the user will be immediately deleted.

3.2.4 With the registration, the user confirms that they are authorised according to the applicable law, to conclude contracts. Only legally competent people are allowed to register independently. Minors are only allowed to do this with the approval of their legal representative. Carealytix reserves the right to check this by making a corresponding request to the user. Should the user be unable to legitimise themselves to a sufficient extent, Carealytix has the right to immediately block the user. Upon registration, the legal guardian also declares themselves authorised to submit legally binding declarations on behalf of the minor.

3.2.5 During registration, the user confirms their awareness and unrestricted recognition of the contents of these Terms of Service and that all their details are true, correct, current and complete, as well as obligating themselves to regularly update the information.

3.2.6 If the user provides false, incorrect, out of date or incomplete information, or if we have justifiable reason to believe that the information is false, incorrect, out of date or incomplete, Carealytix is authorised to block the affected Miku ID with immediate effect and without prior notification and to forbid the use of our products, such a case may result in non-reimbursement of payments already made.

3.2.7 The user is to protect their registration data against unauthorised access by third parties, misuse or use with fraudulent intent. Report any suspicion that your Miku ID may be subject to such a risk immediately to [email protected]. We have the right to block the ID of any user should there be misuse or use with fraudulent intent.

3.3 Conditions for redeeming vouchers

3.3.1 Carealytix vouchers which are issued with a certain validity period can only be redeemed within the stipulated period.

3.3.2 Vouchers can only be redeemed at the time our products are purchased. Subsequent redemption of the voucher is not possible.


3.3.3 Corresponding restrictions in regard to redeeming the voucher result from the contents of the voucher.

3.3.4 Only one voucher can be redeemed per order, whereby the entire value of the goods may not be less than the amount of the voucher. Reimbursement of remaining credit after redeeming a voucher is excluded.


3.3.5 The difference in amount between the value of the voucher and the entire value of the goods is to be compensated by the user. The following payment options are available for this.


3.3.6 The value/remaining value of a voucher is neither paid out nor paid interest on.

3.3.7 In the event of the realisation of a statutory right of revocation, voucher reimbursement is excluded.

4. RIGHT TO WITHDRAWAL AND REVOCATION

4.1 Information about exercising the right to revocation

4.1.1 Insofar as our purchased products (for example, Miku Premium) are neither predominantly used for commercial (i.e. in the scope of a package purchase by a doctor’s practice) nor independent professional purposes, you are authorised as a consumer to revoke the contract concluded with Carealytix according to the following provisions:

C A N C E L L A T I O N  P O L I C Y

Right to revocation

You have the right to revoke this contract within fourteen days without providing a reason.
The revocation period is fourteen days from the day on which you or a third party named by you who is not a carrier, received the last goods through unlocking of the digital content. In order to exercise the right to revocation, you must inform us, Carealytix, Hohendilching 3, 83626 Valley, Germany, e-mail: [email protected], of the decision to revoke this contract with a clear declaration, (i.e. an e-mail or a letter sent by post) of your decision, for example, by using our revocation form provided in these Terms of Service.
You can ensure this revocation period by sending the notification of exercising the right to revocation before the revocation period has expired.

Consequences of revocation

If you revoke this contract, we will be obliged to repay all payments to you which we have received from you, immediately and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. We use the same payment method to make this repayment as you used for the original transaction, unless something else has been expressly agreed with you; in no case will you be charged for this repayment.

Exclusion of revocation

Provided the parties have not agreed anything else, there is no right to revocation of contracts according to § 312 g para. 2 BGB.

R E V O C A T I O N  F O R M

If you wish to revoke the contract, please fill out this form and return it to


Carealytix Digital Health GmbH

Hohendilching 3, 83626 Valley, Germany

[email protected]

I hereby revoke the contract I concluded for the purchase of the Miku Premium app:

Ordered on / received on:



Miku ID (full name + e-mail of the user):


Signature (only for paper notification):

Location, date:




5. USE OF OUR PRODUCTS

5.1 Duration of use and termination

5.1.1 Your right to use our products begins with registration and unlocking by Carealytix.

5.1.2 You can generally use our free products for an unlimited period. The duration of use for products which you have accessed via your doctor (for example, your nephrologist) is guided by the respective insurance and contractual conditions with the respective doctor’s practice.

5.1.3 Our fee-based products can be acquired in the form of an annual subscription, for a shorter or longer period of use, depending on the product (hereafter respectively referred to as the ‘subscription period’). The respective subscription period is shown in our apps or in the app stores.

5.1.4 Carealytix can properly terminate the subscription with a notice period of one (1) month to the end of the subscription period.

You are also entitled to properly terminate the contractual relationship. For this, select the field ‘Terminate’ / ‘Terminate subscription’ or a similar function in your app store user account. You can find more information about termination in the Terms of Service of the respective app store. Should you experience problems terminating a subscription, please contact us at [email protected].

5.1.5 If there is no termination or termination is not carried out in good time, the subscription period is always automatically extended by the previously selected subscription period. The subscription extension is hereby respectively limited to a maximum of one year. The respective standard price at the time of the extension (not: the price of any special or free offers or offers from your insurance) is charged. You can deactivate the automatic extension in the settings of your user account in the respective app store.

5.1.6 In the case of rejection by the user or the revocation of the declaration of consent according to data protection law, the user relationship ends automatically with immediate effect. Without your consent, Carealytix is not permitted to process your health-related data.

5.1.7 If you have questions about the duration or the termination of use, please contact us at [email protected].

5.2 Ban and exclusion

5.2.1 We reserve the right to temporarily ban or permanently exclude a user from using our products at any time for an important reason (at our discretion). In the case of such a contract termination without a notification period, reimbursement of usage fees is excluded.

5.2.2 An important reason is present in particular in the case of gross violation by the user of the provisions of these Terms of Service, for example, gross violation against point 3.1 (Payment) after granting a two week grace period, against point 3.2 (Registration data), point 5.3 (Licence) or section 6. (Your behaviour).

5.3 Licence and granting rights

5.3.1

With your registration and unlocking, you acquire the non-exclusive, non-transferrable and location unrestricted right to save and use a copy or our app for your own purposes in the scope of these Terms of Service. In the case of our fee-based product, this licence is temporally restricted to the duration of your contractual subscription period.

5.3.2 The software is protected according to the provisions for the protection of computer programs. The user expressly recognises the protection mentioned above.

5.3.3 The copyright includes, in particular, the program / source code, the documentation, the appearance of the software, the layout / design of the user interface, the input / editing forms and printouts, content, videos, instructions, structure and organisation of the program files, the program names, logos and other representation forms within the software.

5.3.4 Our products or parts thereof may neither be copied, changed, reproduced, republished or posted, nor transferred, leased, sold, offered for sale or resold or used in a manner which deviates from these Terms of Service, without our prior written approval. Users are not authorised to use brands, logos or other commercially protected trademark rights of Carealytix. Insofar as nothing else is anticipated in these Terms of Service, all rights resulting from the copyright lie exclusively with Carealytix or a company connected to the group and there is no licensing in regard to our products, regardless of the type.

5.4 Availability of our products

5.4.1 We provide our products respectively according to the stipulations of the existing technical, economical, business and organisational possibilities. Carealytix cannot exclude any interruptions, disruptions, delays, deletions, false transmissions or storage failures in connection with the use of our products or communication with the users. We also partially offer our products with the inclusion of third parties and, insofar, are ourselves dependent on the technical provision of third party services.

5.4.2 The same applies in the case of restrictions to the use of our products for reasons of force majeure, strikes, bans and official regulations, as well as technical changes or maintenance work on Carealytix systems. Please contact us at any time regarding defects in our products at [email protected].

6. YOUR BEHAVIOUR

6.1 General

6.1.1 Every user is authorised and obligated to use our products respectively at their own risk and expense, namely under the use of suitable technical devices. You can see which end devices and operating systems are compatible with our products in the app stores.

6.1.2 You are also obligated to use our products exclusively under compliance with these Terms of Service, as well as the statutory provisions and to refrain from any misuse. We request that you please immediately report any violations discovered to the obligations mentioned in this section to [email protected].

6.2 Misuse

6.2.1 Every user is obligated to enter their registration data truthfully, to keep this data up to date and complete and not to transfer this data to third parties. Personal data is to be treated as confidential, managed carefully and secured under your own responsibility. The Miku app accepts no responsibility or other liability for lost or damaged data or contents, provided this cannot be attributed to our own fault.

6.2.2 Content such as photos, pictures, texts, videos or other depictions in connection with our products may only be saved, published, transferred or disseminated insofar as the user is authorised to transfer and use them. In any case, the use of racist, offensive, discriminatory, defamatory, sexual or pornographic, violence glorifying or other illegal content, regardless of the type, is also always forbidden.

6.2.3 It is further prohibited to decrypt, retro-develop, decompile or disassemble our products. Every user is obligated to refrain from using technical or electronic means to disruptively interfere with our products or Carealytix networks (in particular, hacking attempts, brute force attacks, infiltration from viruses, worms, Trojans or other malware), as well as to refrain from disruption attempts which could affect software or hardware of Carealytix products and systems.

7. OUR RESPONSIBILITY

Insofar as nothing else is anticipated in these Terms of Services, Carealytix is liable and provides a guarantee in the scope of the statutory provisions.

7.1 Liability

7.1.1 In the event of a violation of a cardinal obligation (an obligation which is decisive for achieving the purpose of the contract), the liability of Carealytix is limited to the damage which can be anticipated and is typical according to the type of questionable business.

7.1.2 Moreover, the liability of Carealytix for all cases of simple and medium negligence is limited to 25,000.00 EUR. The liability for intentional, gross negligence and for damages from injury to life, body and health and according to the regulations of the German Product Liability Act (ProdHaftG) remains unaffected by this.

7.1.3 Further, Carealytix does not accept any liability for external content, such as external links, banners or other information and advertising offers from third parties, which are positioned in the scope of our products. Insofar as we enable access to offers from third parties with notifications or links, Carealytix is not responsible for the information contained therein. Any legal business which comes about from this leads exclusively to contractual relationships between the user and the respective third party. We make no guarantee nor accept any other liability for third party services.

7.1.4 The Miku app is purely a log book and therefore serves solely for information and developing awareness. Therefore, Carealytix accepts no liability for the use of the app which is contrary to its original intended purpose (cf. 1.1. ‘The product’). If such usage occurs, the user releases Carealytix from any liability, including towards third parties. Furthermore, our details in the app only represent decision making tools in the interests of the user, which do not make any claim to correctness or completeness. Thus, for example, our overview of the dialysis centres close by is only to be seen as a stimulus to inform yourself of the actual current locations. The correctness of the addresses and other information is not guaranteed by Carealytix.

7.1.5 The previously mentioned liability restrictions relate to the personal liability of employees, representatives and entities of Carealytix.

7.2 Guarantee rights

7.2.1 Carealytix provides a guarantee for the proper quality of the contractual software and for the licence holder to be able to use the contractual software without violating the rights of third parties.

Insofar as applicable statutory medical product provisions to which the use of the products are subject requires it, the products may be exclusively operated or used according to the purpose, specifications and application areas, as determined in the offer and the usage conditions.

7.2.2 Carealytix makes no guarantee that our products are always available complete, uninterrupted and error free or that the required software and hardware always works perfectly. Therefore, unresolvable failures do not represent a defect. Moreover, we cannot completely exclude that data transfers which take place via external systems, in particular the internet and other telecommunication networks of third parties, are tracked, recorded or falsified.

7.2.3 The proper guarantee is not applicable to defects which are based on the use of the software delivered by Carealytix in a hardware and / or software environment which does not meet the requirements stipulated by Carealytix and for which the software was not expressly approved.

7.2.4 If the user is a company, it is obligated to immediately check the software for clear defects upon receipt and immediately report any defects present to Carealytix. Otherwise, a guarantee for defects is expressly excluded. This also applies accordingly if such a defect is revealed later. § 377 HGB applies accordingly.

7.2.5 If the user is a company, in the event of the presence of a defect, Carealytix is initially authorised to perform rectification. Carealytix can choose to either provide subsequent improvement to rectify the defect or deliver a replacement. In the event of a replacement delivery, the user will also accept the new state of the software (update), unless this causes the user unreasonable impairment. If there is a legal defect, Carealytix will chose to either provide the user with a legally compliant possibility to use the contractual software or change the contractual software in such a way that there is no longer a violation to the rights of third parties. The regulations of § 536 BGB do not apply.

7.2.6 Our user’s right to withdrawal in the event of two failed attempts at improvement / replacement as well as the right to reduction remain unaffected. The right to withdrawal does not exist in the event of unresolvable defects.

7.2.7 Guarantee claims on the basis on defective goods, with the exception of damage replacement claims, expire within one year. The expiration period begins after notification and unlocking of the access data.

7.3 Software care / maintenance

7.3.1 Carealytix strives to continually improve and develop its software on the basis of technical development, including function, quality and user-friendliness. Regular software updates are carried out to this end.

7.3.2 Software errors (bugs) are resolved in unplanned software updates.

7.3.3 Further software maintenance is solely carried out on the basis of the latest version.

7.3.4 There may be delays or limited usage possibilities in the event of a software update. Such a restriction expressly does not represent a defect.

8. FINAL PROVISIONS

8.1 Choice of law

The law of the Federal Republic of Germany applies to all legal relationships between Carealytix and the user, under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. For consumers, this choice of law only applies insofar as the guaranteed protection through compulsory provisions of the state law in which the consumer usually resides is not expropriated.

8.2 Jurisdiction

If the user acts as a business person, legal entity of public law or public special funds with headquarters in the territory of the Federal Republic of Germany, the headquarters of Carealytix are the exclusive jurisdiction and place of fulfilment for all disputes arising from this contract. If the user has its headquarters outside of the territory of the Federal Republic of Germany, the headquarters of Carealytix are the exclusive jurisdiction and place of fulfilment for all disputes arising from this contract, if the contract or claims arising from the contract can be assigned to the professional or commercial activities of the user. The application of § 40 ZPO (the Code of Civil Procedure) remains unaffected.

8.3 Miscellaneous

8.3.1 Insofar as these Terms of Service require notification from Carealytix, transfer by e-mail to the address provided by the user (Miku ID) during registration is sufficient. Other compulsory statutory regulations remain unaffected by this regulation.

8.3.2 Users are not authorised to transfer their Miku ID or rights and obligations from these Terms of Service in connection with the use of our product to a third party.

8.3.3 Should individual provisions from these Terms of Service be or become ineffective, the remaining provisions in these Terms of Service, which are not affected by this ineffectiveness, remain valid and applicable.

8.3.4 The affected provision is, insofar as legally possible, to be replaced by an effective one which represents the sought after economic purpose as closely as possible. This applies accordingly for any omissions.

8.3.5 These Terms of Service are available in various languages. The version in the language of the country in which the user as a consumer has its residence or usual residence (i.e. German version for users in Austria, Germany and Switzerland) is decisive. If and insofar as no country-specific language version is available, the English version is decisive.

HAVE FUN USING THE MIKU-APP!