General Terms and Conditions for use of the User / Patient Application Curalie App

Status: 28/10/2021

1 Scope of the Terms and Conditions of Use

1.1 Curalie GmbH, Leipziger Straße 61A, D-10117 Berlin (“Curalie”) operates a User / Patient Application, which is made available to users / patients (“User(s)”)) as an application for mobile devices (“Curalie App”). The Curalie App can be downloaded by Users in the App stores and enables one to avail oneself of digital therapeutics and other contents (“Programmes” or “Digital Therapeutics”). Programmes may thereby be offered either by Curalie itself or by external providers within the Curalie App. On the Users’ side, the Curalie App, with the latter’s consent, provides among other things the communication interface between the treating facility and the User. These terms and conditions of use (“Terms and Conditions”) regulate the contractual relationship between the User and Curalie regarding the free downloading and free use of the Curalie App.

1.2 A prerequisite for use of the Curalie App by the User is that the facility treating the User (“Treating Facility”) has concluded with Curalie a contract for use, subject to a fee, of the Software-as-a-Service (SaaS) solution “Curalie Portal”.

1.3 The Services provided by Curalie under these Terms and Conditions are aimed exclusively at consumers. A consumer is any natural person who concludes a legal transaction for purposes that cannot be assigned overwhelmingly to their commercial or self-employed professional activity.

1.4 Usage of the Curalie App is resevered for users aged 16 and over. Users who are over the age of 16 but not yet 18 or Users who are under supervision require the consent of their legal guardian in order to be able to use the Curalie App.

1.5 In addition to these Terms and Conditions, the regulations of the respective sales platform (“App Store”) may apply to the downloading of the Curalie App. In the event of any discrepancy between the Terms and Conditions and the regulations of the App Store the latter shall take precedence. The respective provider of the App Store shall not become a contractual party with regard to use of the Curalie App and shall not be liable for any defects, losses or violations of the rights of third parties.

1.6 These Terms and Conditions do not regulate the relationship between the User and the Treating Facility. The treatment contract concluded between the User and the Treating Facility shall apply exclusively to that relationship.

1.7 Source codes, development materials and Open Source Software that are used within the Curalie App are excluded from this agreement.

1.8 Curalie shall not store this contractual text after conclusion of the contract. The Terms and Conditions may be retrieved at any time from the main menu of the Curalie App.

2 Provision of the User / Patient Application Curalie App

2.1 The Curalie App shall be supplied to the User free of charge as an object code, so that it might be installed upon the User’s terminal device.

2.2 The connection to the internet, the maintenance of the mains connection and the procurement of the hard- and software required for use of the Curalie App are not objects of these Terms and Conditions. In order to be able to use the Curalie App, the User must therefore themselves take care on their own responsibility of the internet access and all technical equipment necessary for the same and bear all charges incurred in connection therewith.

2.3 The User has no entitlement to access to the source codes of the User / Patient Application provided by Curalie, neither in the shape of the SaaS solution nor in that of the Curalie App. The operating of the Curalie App is the responsibility of the Treating Facility.

3 Functions of the Curalie App

3.1 The Curalie App serves the digital accompaniment of the therapy and, subject to the consent of the User, establishes the communication interface between the Treating Facility and the User as well as the Providers of Programmes. In addition, Curalie provides the Users in the Curalie App, subject to the proviso of Section 3.2 below, with other content, for example educational content.

3.2 The specific extent of the functionalities of the Curalie App depends upon the scope of the services acquired by the Treating Facility. The specific functional scope of the Curalie App may also be derived from the respective product description or update description in the App Store. The specific contents and functions of the respective Programme may be derived in the individual case from the respective Programme description in the Curalie App.

3.3 The Curalie App enables the Users to collect information about their health (such as vital parameters, previous illnesses, symptoms, complaints, etc.) and to store this in their User Accounts (cf. Section 4.3) below. Furthermore, it is possible, via the Curalie App, to avail oneself of the Programmes offered by Curalie or external providers on the platform.

3.4 On the basis of all health-related data stored in the User Accounts of a User, the Curalie App permanently implements data analyses. When doing so, the Curalie App determines algorithmically the likelihood that certain conditions relevant to their health might arise in the case of a User or that certain therapy possibility are given and makes the User appropriate proposals for action on this basis.

3.5 Curalie or third parties may make services provided by third parties via the Curalie App or the Curalie SaaS Portal available to the User (e.g. via a market place or any other means). Any procurement of any such third party products or services on the part of the User shall be effected exclusively between the User and the third party in question. Use of such third party products or services is subject to separate terms and conditions, agreed between the User and the providers of the third party products or services. Curalie assumes no guarantees and does not offer any support for third party products or services. The providers of such third party products or services are not sub-contractors of Curalie and Curalie shall not be liable for any actions or omissions on the part of the providers of such third party products or services.

3.6 Beyond that, the Curalie App does not offer any further medical services. The Curalie App is neither a general medical consultancy or treatment service nor does it offer psychotherapy. Furthermore, the Curalie App is not a substitute for an examination or a course of treatment from a doctor. The Treating Facility and any doctors or other service providers working for it or on its behalf thus decide themselves in each individual case and for each individual User the specific measures and specific therapy for the respective User. Use of the Curalie App does not involve the continuous monitoring of the state of health of the User. The information transmitted by the User via the Curalie App is evaluated at irregular intervals and only when necessary by the Treating Facility associated with the User for the purpose of adapting exercises and therapy. No direct treatment or diagnosis shall be undertaken on the basis of these data, neither by Curalie itself nor by the Treating Facility.

3.7 Curalie may supply free updates for the Curalie App to the respective App Store, which extend the scope of the functions accordingly. These Terms and Conditions shall apply analogously to all updates and to functional changes and to the Curalie App in its version amended respectively by updates or functional changes. Curalie is not under any obligation to provide updates or functional changes, however.

3.8 In order to use the functionalities of the Curalie App and/or avail themselves of Programmes, the User must grant their appropriate consent to the processing of their health-related data or release those healthcare facilities treating them and the healthcare professionals working there from their professional obligation to secrecy. Curalie shall separately require the User to submit said declarations of consent and of release from obligations to secrecy and inform as to the scope of those declarations.

4 Conclusion of a Contract; Setting up the User Account; Registration

4.1 The conclusion of a contract between Curalie and the User with regard to use of the User / Patient Application is possible via the Curalie App. The conclusion of a contract with regard to the downloading of the Curalie App is possible exclusively via the App Stores.

4.2 Conclusion of a Contract in the App Store

When the User clicks the “Install” Button on the product description site in the respective App Store (the lettering may differ, depending on the App Store) as well as, where necessary, entering their password for the App Store in question, they submit a binding offer for the conclusion of a contract for use of that section of the Curalie App which is freely accessible to the User without activation and registration according to the criteria of these Terms and Conditions. This offer shall be accepted by the initiation of the downloading process of the App, further details; where applicable, are regulated by the terms and conditions of the respective App Store.

4.3 Setting up a User Account; Conclusion of a Contract in the Patient Application

Use of the functions of the Curalie App is only possible after registration of a User and the setting up of a User Account (“User Account”). A User Account is set up via the Curalie App by the User.

4.3.1 The setting up of the User Account and registration on the part of the User is effected by way of the User making the necessary entries in the Curalie App, receiving a registration code from Curalie by SMS and entering this same code, entering all further necessary details and then clicking the “Confirm” Button.

4.3.2 The following applies with regard to the registration: up to the click on the Confirm Button the User may alter their entries required for setting up the Account (name, gender, date of birth, county, mobile telephone number) at any time by deleting, completing or correcting the entries made in the various fields, or by closing the Curalie App. The contract between Curalie and the User concerning the registration shall come into being by way of the User agreeing to the Basis Declaration of Consent in the Curalie App via the checkbox, entering the aforementioned details for the setting up of the Account and subsequently setting up the Account by clicking on the “Confirm” Button.

4.4.3 The link between the User Account and the Treating Facility is effected by entering the Action Code that the User receives from their Treating Facility. In this way, the corresponding Programme is also activated.

4.4.4 Health-related data that are processed in the context of Programmes by Curalie or any third party providers will be stored in the respective User Account.

5 Obligations of the User

5.1 The User is subject to an obligation to use the Curalie App only in accordance with these Terms and Conditions. The User is hereby obliged not to hinder or disturb other users of the Curalie App who are using the App, not to use the Curalie App for any purposes other than those provided for and not to use it in a manner that would disrupt or overburden its technical processes.

5.2 The User is subject to an obligation to review all data entered by the Treating Facility concerning the User in the User Account for correctness, completeness and truthfulness and to inform the Treating Facility of any incorrect or incomplete details.

5.3 The User is subject to an obligation to inform their Treating Facility without delay of any medical conditions, illnesses, physical weaknesses and suchlike that, in any way whatsoever, contradict and / or do not accord with the exercises displayed to them in the Curalie App and with the Digital Therapeutics prescribed for them and to no longer implement the exercises until such time as the matter has been clarified.

5.4 Should the User, in the context of using the Curalie App, suffer any injuries or should any intensified or new health problems such as pains, feeling unwell, restrictions of sensibilities and / or motor defects arise, the User shall be subject to an obligation to interrupt the exercise affecting them and the therapy prescribed for them without delay and to inform their Treating Tactility about this.

5.5 Should, within the Curalie App, instructions (e.g. for certain exercises) be provided, said instructions are to be obeyed unconditionally in order to avoid injuries and / or health risks.

5.6 Insofar as, within the Curalie App, communication between the User and their Treating Facility should be possible (“User Communication”), the following stipulations apply:

a) The User Communication may not include any content, such as texts, graphics or links, that includes illustrations of violence, is of a pornographic, discriminating, insulting, racist, seditious or slanderous nature, any other illegal content or illustrations, or which violates intellectual property rights, rights of authorship or any other rights enjoyed by third parties.

b) The User Communication may furthermore not contain any personal, private or confidential information, such as credit card or other information pertaining to means of payment, social insurance or alternative national identification numbers, non-public telephone numbers or non-public e-mail addresses, unless you should have the necessary consent of the person(s) affected.

c) Use of the User Communication in the Curalie App for commercial and political purposes, in particular advertising purposes or the forming of political opinion, is not permitted.

d) Curalie does not undertake any pre-screening of the contents of the User Communication (“Communication Contents”). The User does have the possibility, however, of reporting Communication Contents for screening by Curalie via Support should they consider these to be illegal or assume that they violate these Terms and Conditions.

5.7 The User is subject to an obligation to protect their personal entry data from being accessed by third parties and not to forward them to any third parties. User Accounts are not transferable. In the event of a possible misuse or access on the part of third parties, the User shall be obliged to inform Curalie of this without delay via Support. Curalie is in this respect entitled to immediately block the entry data and will accordingly supply the User with new entry data.

5.8 Should the User discover a programming error that may potentially be exploited to the disadvantage of other Users or Curalie, they are obliged to report this via Support.

5.9.      The User is responsible for the backup of the data on their terminal device in regular intervals appropriate to the importance of the Data.

6 Support

6.1 The Treating Facility that is linked with the User Account of a User is the first point of contact for any questions concerning use of the Curalie App. The Treating Facility shall always be regarded as the contact for any questions or amendments to the therapy plan, prescribed services or Digital Therapeutics.

6.2 As a complement to this, Curalie provides Support for disruptions and / or Programme Errors in the Curalie App. This Curalie Support is available at the times indicated in the Curalie App (“Service Times”) via the contact paths (“Service Contacts”) listed there. Curalie reserves the right to restrict, extend or amend the Service Times and / or Service Contacts at its own discretion.

7 Granting of Rights

7.1 Curalie grants the User, restricted to the running term of this contract, a non-exclusive (simple), non-transferable right, for which sub-licences may not be granted, to use the Curalie App and the contents of said App for private purposes in Germany and to store and display the same to the extent necessary for their intended use in accordance with the terms of the contract. Use of the Curalie App outside Germany is technically possible but is at the User’s own risk. The User may only download and use the Curalie App on devices that are linked to the App Store-ID used for the installation. All rights not explicitly granted, in particular the rights of processing, distributing, granting of public access and / or any other evaluation of the Curalie App, remain reserved. Insofar as Curalie, during the running term of this contract, should provide new releases, patches, upgrades, updates and corrections for the Curalie App, the aforementioned right of usage shall apply in the same way to these.

7.2 Components of the Curalie App are excluded from the granting of rights, should they, in a manner recognisable for the User, be subject to the rights of third parties, especially Open Source licences. Such components are deemed recognisable in particular that have been disclosed by Curalie as third party content within the Curalie App.

7.3 The User may not decompile or otherwise reverse engineer the Curalie App, nor may they attempt to acquire knowledge of its source code. The only exceptions to this are actions that are necessary in order to obtain interface information that is required for establishing the interoperability of the Curalie App with any third party software. The prerequisite for this is that the User should have previously attempted, without success, to obtain such information from Curalie in return for appropriate compensation for expenses. Interface information gained in such a manner may only be used for the purpose of establishing interoperability, may not be published and may only be supplied to third parties to the extent necessary for establishing interoperability.

8 Warranty in the Event of Defects

The services of the Curalie App are provided to the User free of charge, so that Curalie, according to statutory regulations, only provides warranty for the fraudulent concealment of a defect or in the event of an error.

9 Liability

9.1 The services of the Curalie App are provided to the User free of charge, so that Curalie, according to statutory regulations, is liable only in cases of wilful intent and gross negligence.

9.2 Curalie is in particular not liable for the treatment and therapy of the User. The treatment and therapy of the User are performed solely by the Treating Facility that is linked to the User Account of the User. Curalie is not responsible for decisions taken by the Treating Facility or the User that they base upon contents, analyses or data displayed in the Curalie App.

10 Running Term; Cancellation; Block

10.1 This contract is concluded for an unlimited period of time, and may be cancelled ordinarily by any of the parties to it, thereby serving a period of notice of two weeks.

10.2 The statutory right to cancel extraordinarily with immediate effect on important grounds remains unaffected.

10.3 The parties are agreed that important grounds for Curalie to cancel the contract are especially given in the following cases:

a) The User violates these Terms and Conditions in a manner liable to disrupt the use of the Curalie App by other users to a not inconsiderable extent;

b) The User violates the ban on the commercial use of the Curalie App;

c) The User, in the context of using the Patient Application, violates the rights of third parties

10.4 Instead of cancelling, Curalie may also temporarily block the User or temporarily or permanently exclude them from individual functionalities of the Curalie App.

11 Final Provisions

11.1 Choice of Law. These Terms and Conditions are subject to German law under exclusion of the UN Convention on the International Sale of Goods and of the provisions of international private law and of the provisions on the conflict of laws.

11.2 Language. The contractual language is German.

11.3 Court of Jurisdiction. With regard to (i) users who are not consumers, (ii) consumers who, at the time of contractual conclusion do not have a residence in Germany or who, after conclusion of the contract, relocate to another country and (iii) consumers whose habitual place of residence is not known at the time of filing the suit, the court of jurisdiction and place of fulfilment is Berlin. Otherwise, the court of jurisdiction is determined according to general regulations.

11.4 Amendments to the Terms and Conditions. Curalie is entitled to amend these Terms and Conditions according to the terms of this Section 11.4 insofar as this should be done (i) in order to implement amended statutory requirements or case law, (ii) in order to implement amended technical requirements, (iii) in order to uphold the business operation of Curalie, (iv) in order to adapt them to changed market conditions and (v) to the advantage of the User. An adaptation shall follow only insofar as this does not disturb the contractual equilibrium between Curalie and the User to the detriment of the latter. Curalie shall inform the User of any adaptation at least six weeks beforehand, either by way of a message within the App or by e-mail. The User has the right to object to the adaptation. Should they fail to do so within six weeks of receiving the message concerning the adaptation, their consent shall be deemed to have been granted. The message containing the announcement of the adaptation shall inform the User separately concerning the six-week period and the legal consequences of silence on their part.

11.5 Compulsory Information regarding the Settlement of Disputes with Consumers. The European Commission, under http://ec.europa.eu/consumers/odr/, provides a platform for the online settlement of disputes (OS). Curalie is neither willing nor obliged to participate in settlement procedures in front of a Consumer Arbitration Board.

11.6 Severability Clause. Should any regulation of this contract be or become invalid, this shall not affect the validity of the remainder of the contract. The parties, within the framework of what can reasonably be expected of them, are obliged in good faith to replace the invalid regulation by a permissible regulation equivalent to it in terms of its economical success, insofar as this should not result in any significant alteration of the contractual content.