General Terms and Conditions of Use for the Curalie App User/Patient Application
1 Scope of Terms and Conditions of Use
1.1 Curalie GmbH, Leipziger Straße 61A, 10117 Berlin (“Curalie”), operates a user/patient application that is provided to users/patients (“Users”) as an application for mobile devices (the “Curalie App”). The Curalie App can be downloaded by Users in the app stores. These Terms and Conditions of Use (the “Terms”) govern the contractual relationship between the User and Curalie regarding downloading and using the Curalie App, for which the User is not obligated to remit any payment.
1.2 The User acknowledges that these Terms apply as the sole and exclusive contractual basis for the use of the Curalie App. Any general terms and conditions of business of the User that may conflict herewith are ruled out, even if Curalie does not expressly object thereto. By way of clarification, general terms and conditions of business of the User that deviate herefrom, conflict herewith, or supplement these Terms cannot become elements of the contract unless, and can only do so to the extent that, Curalie has expressly consented in written form to the application thereof. These Terms shall not affect any other existing contracts and/or agreements between Curalie and the User.
1.3 Curalie’s services under these Terms are aimed exclusively at consumers. “Consumer” means every natural person who enters into a legal transaction for purposes that predominantly are outside that person’s trade, business or profession.
1.4 Use of the Curalie App is restricted to Users aged 18 years or older. Users who are under legal custodianship require the consent of their legal representative to use the Curalie App.
1.5 In addition to these Terms, the rules of the relevant sales and distribution platform (“App Store”) may apply to the download of the Curalie App. In the event of any discrepancy between the Terms and the rules of the App Store, the latter shall prevail. Where the Curalie App is downloaded from the App Store of Apple Inc., the contract is entered into not between the User and Apple Inc., but rather between the User and Curalie, with the result that with regard to the licensing of the app, the sole entity liable toward the User is Curalie. Apple Inc. does not become a party to the contract with regard to the use of the Curalie App, nor is it liable for any defects, damage, or infringements of third-party rights. Apple Inc. is also under no obligation to provide maintenance, support, and/or care services in relation to the app.
1.6 These Terms do not govern the relationship between the User and any treating person or healthcare institution (“Treating Healthcare Institution”). This relationship is subject exclusively to the treatment contract entered into by and between the User and the Treating Healthcare Institution. Curalie is not, nor does it become, a party to any such treatment contract. Where such a treatment contract can be entered into between the User and the Treating Healthcare Institution via the Curalie App, the terms and conditions of the relevant Treating Healthcare Institution apply.
1.7 Source code, development materials, and open source software used within the Curalie App are excluded from this Agreement.
1.8 Curalie does not store the text of this Agreement after it is entered into. The Terms can be accessed via the main menu of the Curalie App at any time.
2 Subject matter of contract; provision of the Curalie App User/patient application
2.1 The subject matter of the contract is the provision of the Curalie App for use by the User. The Curalie App initially encompasses various freely available functions for direct use in the app (“Base Functions”). It is also possible to use the app to run programs with specific health-related content, such as digital exercise, learning, or informational materials, along with those featuring general content (“Programs”). If a User has linked to a Treating Healthcare Institution in the app, the Curalie App serves as a communication interface between the Treating Healthcare Institution and the User.
2.2 The User is not obligated to remit any payment to use the Curalie App. It is possible that an obligation of payment may arise on the User’s part for the use of Programs or for services provided by Treating Healthcare Institution under the treatment contract. Any such obligation will be expressly pointed out to the User within the app before it arises.
2.3 The Curalie App is provided to the User as object code in accordance with the provisions of these Terms, without any obligation of payment, in the form in which it is available in the App Store at the time when the contract is entered into there so that it can be installed on the User’s device.
2.4 The connection to the Internet, the maintenance of the connection to the Internet, and the particular quality and provision of the hardware and software necessary to use the Curalie App are not part of the subject matter of these Terms. To be able to use the Curalie App, the User must therefore ensure on his or her own responsibility that he or she has Internet access and all of the technical equipment necessary to this end and must bear the fees and charges incurred in this context him- or herself.
2.5 The User has no claim to access to the source code for the Curalie App.
3 Functions of the Curalie App
3.1 Except as provided in Sec. 3.2 below, the Curalie App, a digital health coach, contains freely available Base Functions and Programs. If the User links to a Treating Healthcare Institution in the Curalie App, the Curalie App serves as a communication interface between the Treating Healthcare Institution and the User.
3.2 The specific scope of the functions of the Curalie App, including the available Base Functions, is as set forth in the relevant product description or update description in the App Store. The specific content and functions of the relevant Program are as set forth in the individual case in the description of the relevant Program in the Curalie App.
3.3 Unless expressly indicated otherwise in the relevant Base Function or the relevant specialized Program, the Curalie App does not offer any medical services. Unless expressly indicated otherwise in the relevant Base Function or the relevant specialized Program, the Curalie App does not constitute general medical or physician’s advice or treatment or psychotherapy. Unless expressly indicated otherwise in the relevant Base Function or the relevant specialized Program, the Curalie App is also no substitute for a doctor’s examination or treatment.
3.4 This means that Treating Healthcare Institutions that use Curalie or doctors or other service providers acting for them or on their behalf make their own decisions, in each individual case and for each User, regarding the specific measures and specific treatments involved. The use of the Curalie App does not include any monitoring of the User’s state of health either by Curalie or by the Treating Healthcare Institution. The information transmitted by the User via the Curalie App can be analyzed by the Treating Healthcare Institution that is linked to the User.
3.5 To be able to use the functions of the Curalie App and/or Programs, the User is required to consent to the processing of his or her health data and, where applicable, to release Treating Healthcare Institutions and the doctors and/or nursing staff who work there from their professional obligations to maintain confidentiality. Curalie will request that the User issue these declarations of consent and release from confidentiality obligations separately and will provide the User with information on the scope of these declarations.
4 Changes to the Curalie App
4.1 Curalie is permitted to modify and adjust the Curalie App and the scope of the functions thereof beyond the measure necessary to ensure that the Curalie App remains in accordance with the contract if a compelling reason so dictates. Such a reason is deemed to exist in particular in the case of changes (i) to implement changed statutory requirements or case law; (ii) to carry out orders issued by any court or government agency; (iii) to implement changed technical requirements, such as a new technical environment or other technical reasons; (iv) to adapt to changed market conditions such as increased numbers of Users; (v) based on infringements of third-party rights; (vi) based on loss of or changes to the licensing terms of third parties whose licenses are necessary to the operation of the Curalie App; (vii) based on delivery or provision restrictions on the part of service providers of Curalie; or (viii) for the User’s benefit.
4.2 Users will not incur any additional costs for changes to the Curalie App or the scope of functions thereof. Curalie shall provide Users with clear and understandable information regarding the change in the Curalie App.
4.3 If any such change adversely affects the ability to access the Curalie App or the usability of the Curalie App for the User to a more than merely minor extent (“Negative Change”), Curalie shall notify the User thereof at least eight weeks in advance by sending a message (“Change Notification”). The Change Notification must contain the features and the time of the Negative Change and the rights of the User as described below.
4.4 In the event of any Negative Change, the User has the right to terminate the contract with no charge upon 30 days’ notice. The notice period commences upon the User’s receipt of the Change Notification. If the change occurs after the User receives the Change Notification, the period does not commence until the time of the change. Termination of the contract is ruled out if the possibility of accessing or using the unchanged Curalie App continues to exist at no additional cost.
4.5 These Terms apply accordingly to all changes and to the Curalie App in the version thereof as amended in each case by changes.
4.6 By way of clarification, adding, removing, and adjusting Programs available via the Curalie App does not constitute a change to the Curalie App or the scope of functions thereof and can be carried out by Curalie at any time without considering the specifications of this Sec. 4.
5 Entry into the contract; setting up the User account; registration
5.1 It is possible for the contract between Curalie and the User with regard to the use of the User/patient application to be entered into via the Curalie App. Entering into the contract with regard to the download of the Curalie App is possible exclusively via the App Stores.
5.2 Entry into the contract in the App Store
By clicking the “Install” button (whose exact wording may vary according to the App Store) on the product description page within the relevant App Store and, where applicable, entering his or her password for the App Store in question, the User issues a binding offer to enter into a contract regarding the use of that portion of the Curalie App that is freely accessible to the User without activation and registration in accordance with these Terms. This offer is accepted in that the download of the app begins; further details may be governed by the relevant App Store’s terms of service.
5.3 Setting up a User account; entry into contract with regard to the User/patient application
The functions of the Curalie App can only be used if the User registers and sets up a User account (“User Account”). A User Account is set up by the User via the Curalie App.
5.3.1 The User Account is set up and the User is registered in that the User provides the necessary information in the Curalie App, receives a login code from Curalie via text message, enters this code, provides all further required information, and clicks the “Confirm” button.
5.3.2 The following applies to registration: Until the “Confirm” button is clicked, the User can modify the entries necessary to create the account (name, sex, date of birth, country, and mobile phone number, collectively “Base Information”) at any time by deleting, adding to, or correcting the information entered in the various fields or closing the Curalie App. The contract regarding registration between Curalie and the User comes into existence in that the User consents to the basic declaration of consent via checkbox in the Curalie App, provides the information mentioned above to create the account, and then creates the account by clicking the “Confirm” button.
6 Obligations of the User
6.1 User information
6.1.1 All Base Information provided by the User him- or herself must be complete, accurate, and truthful. The User must keep all Base Information provided by the User him- or herself up to date.
6.1.2 The User is obligated to check all data entered by the Treating Healthcare Institution regarding the User in the User Account to ensure that these data are accurate, complete, and truthful and must notify the Treating Healthcare Institution of any incorrect or incomplete information.
6.1.3 The User affirms that he/she is not (i) located in a country that is subject to an embargo imposed by the U.S. government or is listed in Title 15, Part 740, Supplement 1 Country Group E of the U.S. Code of Federal Regulations; or (ii) on a U.S. government list of prohibited or restricted parties.
6.2 Use of the Curalie App and Programs; medical conditions
6.2.1 The User is obligated to use the Curalie App exclusively in accordance with these Terms and with the relevant stated purpose and directions for use. In so doing, the User is obligated not to impede or harass other users of the Curalie App in their use thereof, use the Curalie App for purposes other than those intended, or use it in any manner that disrupts or overloads the technical processing thereof.
6.2.2 The User is obligated to take any and all medical conditions, diseases, physical infirmities or similar that in any way conflict with and/or are not in accordance with the Programs, exercises, or other offerings displayed to the User in the Curalie App into account before implementing the latter.
6.2.3 Should the User experience any injury or increasing or newly arising health issues, such as pain, malaise, sensory disruptions, and/or motor deficits as part of using the Curalie App, the User is obligated to discontinue the use in question immediately.
6.2.4 If instructions are provided within the Curalie App (for example, for certain exercises), these instructions must absolutely be followed in order to prevent injury and/or health risks.
6.3 User communications; User Account; programming errors; data backups
6.3.1 Where it is possible for the User to communicate with the Treating Healthcare Institution in the Curalie App (“User Communication”), the following provisions apply:
a) The User Communication must not contain any content, such as texts, graphics, or links, containing depictions of violence, pornographic, discriminatory, insulting, racist, hatred-inciting, defamatory, or otherwise unlawful content or depictions or infringing third-party industrial property rights, copyright, or other rights.
b) Furthermore, the User Communication must not contain any personal, private, or confidential information such as credit card information or information on other means of payment, social insurance or alternative national identity numbers, non-public phone numbers or non-public e-mail addresses, unless the User has the requisite consent of the data subject or subjects.
c) Use of the User Communication in the Curalie App for commercial or political purposes, particularly advertising purposes or purposes of formation of political opinions, is not permitted.
d) Curalie will not perform any advance review of the content of User Communication (“Communication Content”). However, the User has the opportunity to report Communication Content for review by Curalie via the support function if the User believes the content to be unlawful or assumes that it violates these Terms.
6.3.2 The User is obligated to protect his or her personal login information against access by third parties and not to share this information with third parties. User accounts are not transferable. In the event of possible abuse or access by third parties, the User must notify Curalie without delay via the support function.
6.3.3 If the User discovers a programming bug or error that could potentially be exploited to the detriment of other users or Curalie, the User is obligated to report it via the support function.
6.3.4 The User is responsible for backing up the data on his or her mobile device at regular intervals as appropriate to the importance of the data.
7.1 The relevant healthcare institution is the first point of contact for any questions relating to offerings within the Curalie App that are used in conjunction with the treatment by a Treating Healthcare Institution.
7.2 In addition to this, Curalie provides a support function for disruptions and/or programming bugs or errors in the Curalie App. The Curalie support function can be reached at the times indicated in the Curalie App (“Service Times”) and via the contact channels (“Service Contact”) indicated therein. Curalie reserves the right to restrict, expand, or change the Service Times and/or Service Contacts at its own discretion.
8 Granting of rights
8.1 Curalie grants the User a non-exclusive, non-transferable right, not subject to sublicensing and without limitation in geographic scope, limited in term to the term of this contract, to use the Curalie App and the content contained in the Curalie App for personal purposes in accordance with these Terms and to store and display these within the scope necessary for the use thereof as intended and agreed. Any and all rights not expressly granted, particularly the rights of adaptation, distribution, making available to the public, and/or other exploitation of the Curalie App, remain reserved. To the extent that Curalie provides new releases, patches, upgrades, updates, and corrections to the Curalie App during the term of this contract, the foregoing right of use applies likewise.
8.2 The granting of rights does not apply to components of the Curalie App that are subject, in a manner apparent to the User, to the rights of third parties and/or, particularly, to open source licenses. Any components disclosed by Curalie within the Curalie App as third-party content are deemed in particular to be apparent for these purposes.
8.3 The User is not permitted to decompile or otherwise reverse-engineer the Curalie App or to attempt to ascertain its source code. The only exceptions to this are actions that are necessary in order to obtain interface information that is necessary in order to establish interoperability between the Curalie App and third-party software. It is a prerequisite for this that the User must have previously attempted, without success, to obtain such information from Curalie in exchange for reasonable compensation for the time, effort, and expense involved. Interface information gained in this way must be used exclusively for the purpose of establishing interoperability, must not be published, and must be provided to third parties only to the extent necessary to establish interoperability.
8.4 The User is permitted to download and use the app exclusively on devices that are linked to the App Store ID used for the installation. If the User has downloaded the app from the App Store of Apple Inc., the granting of rights in this Sec. 8 applies to the use of the app on all Apple-branded products in the User’s possession or control and to the extent that this is permissible pursuant to the App Store Terms of Service unless the app can be acquired and used by other accounts associated with the User via Family Sharing or group purchasing.
9 Warranty in case of defects
9.1 Curalie provides a warranty in accordance with the statutory provisions.
9.2 If the User has downloaded the Curalie App from the App Store of Apple Inc., Apple is, to the extent permissible under applicable law, under no warranty obligation in relation to the Curalie App or any or all other claims, losses, obligations, liabilities, damage, costs, or expenses attributable to failure to observe a warranty or failed assertion of warranty claims against Curalie, and these lie outside the scope of the responsibility of Apple and are instead the sole responsibility of Curalie. However, the User has the opportunity to notify Apple in the event of failure of the assertion of warranty claims against Curalie. Apple shall then reimburse the User for the purchase price of the Curalie App, where applicable.
10.1 Curalie’s liability within the scope of these Terms is limited to the provisions that follow.
10.2 Curalie is liable without limitation for intent and gross negligence and in the event of damage and/or losses arising from loss of life, bodily injury, or impairment of health.
10.3 In cases of ordinary negligence, Curalie is liable in case of violation of an essential contractual obligation. An essential contractual obligation within the meaning of this Section is an obligation whose fulfillment renders the implementation of the contract possible in the first place and that the other party to the contract is therefore generally permitted to trust will be fulfilled.
10.4 Liability pursuant to Sec. 10.3 is limited to the damage and/or losses that are foreseeable at the time of the parties’ entry into the contract and typically should be expected to arise.
10.5 Liability for damage and/or losses arising from loss of data is limited in the case of Sec. 10.3 to the amount that would have been incurred to restore the data even if the User had backed up the data regularly and in keeping with the risk involved.
10.6 The limitations of liability apply accordingly for the benefit of the employees, agents, and vicarious agents of Curalie.
10.7 Nothing herein shall affect any liability on the part of Curalie for warranties provided (which must be expressly designated as such) or for claims based on the German Product Liability Act (ProdHaftG).
10.8 Any further liability on the part of Curalie is ruled out. In particular, Curalie is not liable for the User’s treatment or therapy. The User’s treatment and therapy are provided exclusively by the relevant Treating Healthcare Institution that is linked with the User’s User Account. Curalie is not responsible for decisions made by the Treating Healthcare Institution or the User on the basis of the content, analyses, or data depicted in the Curalie App.
11 Term; termination; block
11.1 Term and termination
11.1.1 This contract is entered into for an indefinite term and can be terminated by either party hereto by way of ordinary termination upon two weeks’ notice.
11.1.2 Nothing herein shall affect the statutory right of extraordinary termination with immediate effect for good cause.
11.1.3 The Parties agree that Curalie has good cause to terminate the contract in the following cases in particular:
a) the User commits a severe breach of the provisions of these Terms or breaches such provisions despite a warning or repeatedly;
b) the User breaches these Terms in a manner that is likely to disrupt the use of the Curalie App by other users to a more than merely minor extent;
c) the User violates the prohibition of commercial use of the Curalie App; or
d) the User violates the rights of third parties within the scope of using the Curalie App.
11.2.1 Instead of terminating the contract, Curalie is permitted to temporarily block the use of the Curalie App by the User in its reasonably exercised discretion or to temporarily exclude the User from individual functions of the Curalie App in case of justified suspicion of a breach of these Terms or of abuse of the Curalie App, for example in case of unauthorized use of the User Account by a third party.
11.2.2 Curalie is moreover entitled to block the User’s access to the Curalie App temporarily if (i) imposing such a block is necessary for technical reasons, or (ii) Curalie is obligated to do so by law, based on a court order or judgment, or based on instructions or regulations issued by a government agency.
11.2.3 Curalie shall announce any block, including the reasons therefor, to the User in at least text form no later than one working day before the block takes effect and enable the User to issue a statement regarding the block, provided that making such announcement and/or awaiting the statement in question is and/or are reasonable and compatible with the purpose for which the block is being imposed upon consideration of the interests of both sides. Curalie shall lift the block on the use of the Curalie App (and all functions) by the User if and when the reason for the block has ceased to apply.
12 Amendments to the Terms
12.1 Curalie is permitted to amend and adjust these Terms with effect for the future if there is a compelling reason for the change and to the extent that the changes are reasonable upon consideration of the interests of both parties to the contract.
12.2 A compelling reason is deemed to exist in particular if the changes are necessary to a not insignificant extent based on a disruption in the balance between performance and consideration under the contract that was not foreseeable for Curalie at the time when the contract was entered into or are necessary to the further performance of the contract due to changes in case law or legislation.
12.3 Any change in a principal obligation of performance – with the exception of the changes to the Curalie App or the scope of the functions thereof as described in Sec. 4 – is ruled out.
12.4 Curalie shall transmit the amended terms and conditions to the User in text form at least eight weeks before the scheduled date on which they are to take effect and shall point out the new provisions and the date on which they are to take effect separately. At the same time, Curalie shall grant the User a reasonable time limit of not less than eight weeks to make a declaration concerning whether the User accepts the amended Terms for the continued use of the Curalie App and the functions thereof.
12.5 If no declaration is made by the User within this time limit, which begins running when the message is received in text form, the amended Terms are deemed to have been agreed.
12.6 Curalie shall notify the User separately of this legal consequence, i.e., the right to object and the time limit for so doing and the significance of not making a statement, when the time limit commences.
13 Third-party beneficiaries
In the event that the User downloads the app from the App Store of Apple Inc., the following applies:
The Parties acknowledge and agree that Apple Inc. and the subsidiaries of Apple are third-party beneficiaries of this contract and that as soon as the User accepts these Terms, Apple is granted the right (and it is notionally assumed that Apple accepts this granting of rights) to perform the contract and these Terms toward the User as a third-party beneficiary.
14 Final provisions
14.1 Choice of law. These Terms are subject to German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the provisions of private international law and conflict of laws. If the User is a consumer and does not have a permanent residence in Germany, the foregoing applies with the proviso that non-waivable provisions of the laws of the state in which the User has his or her habitual residence is located continue to apply if these provide otherwise.
14.2 Language. The language of the contract is German.
14.3 Place of jurisdiction. Berlin is the place of jurisdiction and place of performance with regard to (i) users who are not consumers, (ii) consumers who do not have a domicile in Germany at the time when the contract is entered into or thereafter relocate their domicile to another country, and (iii) consumers whose habitual residence is unknown at the time when a legal action is brought. In all other cases, the place of jurisdiction shall be determined according to the general rules.
14.4 Required information on consumer dispute resolution. The European Commission provides a platform for online dispute resolution (ODR) at http://ec.europa.eu/consumers/odr/. Curalie is neither willing nor obligated to participate in any dispute resolution proceedings before a consumer conciliation body.