General Terms and Conditions of Use for Physicians
1. Subject of the Contract
1.1 The following contract regulates the provision of the software “Neptune” (“Contract Software“) by way of a Software-as-a-Service subscription by Orbit Health GmbH (hereinafter “Orbit“). The physician receives the technical possibility and authorisation to access the Contract Software by means of telecommunication connections (e.g. internet) and to use the functionalities of the Contract Software within the scope of this contract. For this purpose, Orbit shall make the Contract Software available for use by the physician.
1.2 The Contract Software is intended to provide the physician with access to the data collected from his/her patient using the Neptune App for the purpose of supporting treatment decision-making. The Contract Software is not intended to provide diagnosis or enable automated decision-making or treatment recommendations. The physician therefore acknowledges that he/she is solely responsible for the use and interpretation of the data generated by the Neptune App.
1.3 Furthermore, Orbit provides maintenance services that ensure continuous use of the Contract Software.
1.4 The physician is solely responsible for the required telecommunication connection, this is not provided by Orbit.
1.5 The loading and saving of the physician’s data within the Contract Software is not the subject of this contract and is the sole responsibility of the physician. The contractual scope of services also does not include compliance with archiving obligations, e.g. longer-term data backups in accordance with health law, for which the physician is responsible.
2. Right of Use
2.1 Upon conclusion of this contract and successful registration, Orbit grants the physician the non-exclusive, non-transferable, non-sublicensable, nationwide right, limited in time to the term of this contract, to access the Contract Software by means of a telecommunication connection through named user and to use the functionalities of the Contract Software in accordance with this contract for his/her own purposes. The physician shall not receive any further rights.
2.2 The physician is not entitled to use the Contract Software beyond the use permitted in accordance with this contract or to have it used by third parties or to make it accessible to third parties. In particular, the physician is not permitted to reproduce the Contract Software or parts thereof, to sell it, to make it accessible to third parties or to make it available for a limited period of time, especially not to rent or lend it or to provide services for third parties with his/her help.
3. Access Opening
3.1 Orbit will set up an administrator account for the physician and communicate the access data. With the help of this administrator access, the physician can manage the named users, in particular set up named users.
3.2 The physician can change the profile details of the named user, except for named user’s UID, email address, and mobile number. For these and any other changes to be made, the physician is to contact and notify Orbit via email at Neptune@orbit.health. The physician is responsible for ensuring that only authorised named users have access to the patient data stored in the contract software.
4. Maintenance services
4.1 Orbit shall maintain the Contract Software under this contract and shall remedy any defects that may arise. The software defect rectification is intended to ensure that the Contract Software functions continuously and without malfunction.
4.2 The physician can contact the Orbit support at support email Neptune@orbit.health available from Monday – Friday from 9:00 am to 5:00 pm. Public holidays in Bavaria, Germany, as well as 24, 25, and 31 December and 1 January of a year are excluded.
4.3 The support email includes the following services within the scope of this contract: Support for questions regarding the operation of the Contract Software as well as receipt and support in the event of defects.
4.4 Within the scope of the maintenance services, Orbit shall be entitled to further develop the software technically and/or functionally, so that, for example, existing functionalities and processes are improved or its scope of application is extended. The physician has no claim to such further developments. If it is a further development which substantially changes the functionality and/or use of the Contract Software, the physician may terminate the contractual relationship extraordinarily in accordance with clause 9 if adherence to the contract is unreasonable for him/her due to the change.
5. Availability and change of platform
5.1 The Contract Software is available from Monday to Sunday from 6:00 a.m. to midnight (CET) – but excluding maintenance work. As far as possible, Orbit will inform the physician online in advance of planned maintenance work. Such maintenance work shall take place in particular in the period between 8:00 p.m. and 5:00 a.m. (CET).
5.2 In addition, Orbit is entitled to temporarily restrict the use if this is necessary with regard to security, integrity or to implement mandatory technical measures and such restriction serves the improved or proper provision of the services.
6. Duties of the physician
The physician is obliged to fulfil the duties incumbent upon him/her for the provision and processing of services under this contract. He/she shall in particular
6.1 protect the access data communicated to him/her for administrator access from access by third parties and not pass it on to unauthorised third parties;
6.2 ensure that only authorised persons have access to the Contract Software;
6.3 indemnify Orbit against all claims of third parties which are based on an unlawful use of the Contract Software by him/her or which occur with his/her approval or which result in particular from data protection law, copyright law or other legal disputes which are connected with the use of the Contract Software unless is the physician is not responsible for such use. If the physician recognises or must recognise that such an infringement is imminent, there is an obligation to inform Orbit immediately.
Unless otherwise agreed, the use of the Contract Software is free of charge.
8. Contract period, termination
8.1 The contractual relationship runs for an indefinite period and can be terminated by either party with a notice period of three (3) calendar months. However, Orbit is not entitled to terminate the contractual relationship as long as patients of the physician use the Neptune services and the physician needs to access the data transmitted from the Neptune App to the Contract Software in the course of treatment.
8.2 The right to terminate for good cause remains unaffected. Subject to section 112 of the German Insolvency Code, either party may terminate the contractual relationship without notice in particular if:
- a significant deterioration of the financial situation of a party occurs or threatens to occur, in particular if this party is insolvent or over-indebted or foreclosure proceedings are initiated against its assets;
- one of the parties breaches its obligations under this contract and fails to remedy the breach within a reasonable period of time despite a reminder. A reminder shall not be required if it is unsuccessful or the breach is so serious that the other party cannot reasonably be expected to adhere to the contract;
- requirements of the legislator, a court or an authority result that the contract software can no longer be offered in this form.
8.3 All notices of termination under this contract shall be in textform.
8.4 Upon termination, the physician’s entitlement to use the Contract Software shall expire. The physician is obliged to make a copy of the patient data processed by the Contract Software in good time and to keep it in such a way that he/she can access it to the necessary extent even after termination. Orbit shall delete these within the scope of the data protection law deletion obligations.
9. Claims for defects, liability
Claims for defects and liability are governed by the statutory law (Sec. 599, 600 German Civil Law (BGB)).
10.Drugbank data service
The Contract Software contains access to the Drugbank data service, for which the physician can call up FDA approved drugs in the prescription fields. The DrugBank Data is intended for educational and scientific research purposes only and the phyisican expressly acknowledges and agrees that the use of the DrugBank Data is at his/her sole risk. There is no warranty on the accuracy of the DrugBank Data, and reliance on the DrugBank Data shall be at his/her sole risk. DrugBank Data is not intended as a substitute for professional medical advice, diagnosis or treatment.
11. General and professional Secrecy
11.1 The parties undertake to carefully protect confidential information from unauthorised knowledge by third parties. Confidential information is in particular the source code of the Contract Software, the patient’s data available in the Contract Software as well as information marked or designated as confidential by Orbit or by the physician.
11.2 Except as otherwise expressly provided in the Contract, a party shall not disclose such confidential information to any third party, other than its own employees, except with the prior express written consent (email sufficient) of the disclosing party, if and to the extent that such disclosure is necessary to fulfil the purposes set out in the contract and the aforesaid persons are required to treat the confidential information of the disclosing party with the same degree of confidentiality as is set out in this clause 10.
11.3 The duty of confidentiality shall not apply to confidential information (i) which was already in the public domain at the time of disclosure or which subsequently becomes in the public domain without any failure to comply with the foregoing being a contributing cause thereof, (ii) which is expressly disclosed by the disclosing party on a non-confidential basis, (iii) which was already in the lawful possession of the receiving party prior to disclosure, or (iv) which is subsequently disclosed to it by a third party without any breach of a duty of confidentiality. The burden of proving the existence of any of the foregoing exceptions shall be on the party relying thereon.
11.4 Each party must immediately destroy, delete or return to the other party all confidential information (including all duplicates) if the other party so requests after termination of the contract.
11.5 The physician is bound by professional secrecy obligations under applicable German or local laws. Orbit acknowledges that in connection with or at the occasion of the provision of services to the physician it may become aware of data or information which is subject to professional secrecy obligations (such data or information hereinafter referred to as “Professional Secrets”).
11.6 Being instructed by the physician about possible criminal prosecution and punishment by a fine or imprisonment for a term of up to one year in the event of a violation of confidentiality obligations according to § 203 German Criminal Code (Strafgesetzbuch – StGB), Orbit commits to maintain confidentiality and refrain from unauthorized disclosure within the meaning of § 203 StGB also regarding Professional Secrets as defined above and to only access Professional Secrets insofar as required to provide the services.
11.7 Subject to the terms of the Agreement, Orbit shall be authorized to involve further persons for the performance of its contracts with the physician. Orbit commits to require such further persons who may have access to Professional Secrets in text form or in writing to maintain confidentiality in the same manner.
11.8 The duty of confidentiality pursuant to this clause 10 shall continue to apply after termination of the contract.
12. Applicable law, place of performance
12.1 This contract is exclusively subject to the substantive law of Germany.
12.2 Place of performance is Munich.
13. Completeness, severability, reference citation
13.1 The foregoing provisions conclusively and completely reflect the agreements between the parties with respect to the subject matter of the contract and supersede all prior written, oral and implied agreements, understandings or arrangements, if any. No ancillary agreements, written, oral or implied, have been made.
13.2 If any provision of this contract is or becomes void, invalid, unenforceable or unenforceable in whole or in part, the validity and enforceability of the remaining provisions of this contract shall not be affected thereby.
13.3 The physician agrees that Orbit may use his/her name for press releases, product brochures and financial reports referring to the fact that the physician is a customer of Orbit.