Note: this is an automatic translation of our German terms and conditions.
Terms and Conditions
of DiaMonTech AG, with registered office at Boxhagener Str. 82A, 10245 Berlin, registered in the Commercial Register of the Local Court in Berlin-Charlottenburg, HRB 212017 B (hereinafter referred to as "DMT") regarding the use of the digital health application "Diamoki" (hereinafter referred to as "Application") offered by the Operator to the User and the associated rights and obligations (hereinafter referred to as "GTC").
1.2 User within the meaning of these GTC means any natural person.
1.3 The use of the application is not a substitute for direct contact with the doctor and does not constitute a reporting system to the doctor. Complaints, problems, questions or similar concerns must always be clarified directly and not via the application with the attending physician.
2. Subject matter of the contract
2.1 The GTC govern the use of the Application and its main functions, which include support for self-management of diabetes.
2.2 DMT provides Users with offers for personal use. These offers will be gradually adapted and extended by DMT as required.
2.3 Offers in the Application may include, for example, storage of blood glucose levels, activities, medication intake data, use of push notifications and other functionalities.
2.4 An unrestricted availability of the Application cannot be technically guaranteed, as the use requires access to telecommunication networks and connections over which DMT has no control. DMT shall endeavour to reduce interruptions due to operational reasons (e.g. due to care or maintenance work on hardware and software) as far as possible.
3. Conclusion of contract and registration
3.1 DMT provides the application for compatible end devices for download in the respective app stores. The download and use of the application is free of charge. Any connection costs incurred during use, e.g. with the mobile phone provider, shall be borne by the User.
3.2 The contract of use between the User and DMT shall be concluded as soon as the User registers by providing his e-mail address. Based on the registration, the User's user account is also created, through which the User can use the application. The data sent is considered by the Operator to be correct and true.
3.5 The provisions of these GTC shall be an integral part of the contract from the time of its conclusion. Provisions deviating from the GTC may be agreed individually in writing. Deviating provisions of the contract take precedence over the provisions of these GTC.
3.6 An e-mail address and a password are specified during registration. The User shall immediately receive an e-mail from DMT verifying the e-mail address. The User has thus successfully registered and has access to the secure area.
3.7 Each User may only have one Account. In order to access the account, the User must enter the login details provided when creating the account.
3.8 The User must keep his/her password confidential, in particular he/she must not disclose this password to anyone or obviously write it down or pass it on. The user is responsible for all activities that take place or are carried out under his password. If he knows or suspects that another person knows his password, he must change the password or contact DMT immediately and inform it. The Operator shall not be liable for any damage in the event of a breach of this obligation by the User. If DMT suspects that a breach of security or misuse of the application is imminent, the User may be required to change his password or DMT may temporarily disable access.
3.9 Only if the User is of legal age and there are no serious health restrictions incompatible with the use of the Application, the User may register for the Application. The Application is not intended for persons under the age of 18.
3.10 All data provided by the user during registration or in the account must be correct and true. In the event of a subsequent change, the user is obliged to update the data immediately. The operator is not liable for any damage caused by the user providing false or inaccurate data or violating his obligation to update the data.
3.11 The User is responsible for the activities within the account, regardless of whether they are carried out by the User himself, a person authorised by the User or another third party.
3.12 The User is entitled to request the deletion of his/her Account at any time by sending an email to the Operator's contact email address listed at the bottom of these GTC.
Term and termination
4.1 The contract for the use of the application is unlimited.
4.2 Users may terminate the contract at any time by deleting the user account in accordance with these GTC or by e-mail (email@example.com).
4.4 DMT reserves the right to suspend or terminate access to the Services with prior notice to the email specified in the Account. This applies in particular,
(a) if Users violate the GTC,
(b) if Users use the Services in a manner that could create a real risk of damage or loss to DMT or other Users,
(c) in the event of unforeseen circumstances beyond DMT's control; or
(d) to comply with any legal requirement.
4.5 Through the email address associated with the User's account, DMT will give the User reasonable advance notice to cease the activity in question. If the User does not take the necessary steps following this request, access to the Services will be terminated or suspended.
4.6 No prior notice will be given in the event of termination in particular:
(a) in the event of a serious breach of these TOS,
(b) if it would result in legal liability for DMT or affect DMT's ability to provide the Services to other Users; or
(c) if DMT is prohibited from doing so by law.
5. Use of Diamoki
5.1 The App is available via the Android or iOS appstore for mobile applications.
5.2 User access includes the ability to keep a diabetes diary.
5.3 DMT has no control over how Users use the App. The User is responsible for the accuracy and completeness of the information provided. DMT does not check the accuracy or completeness of the entries.
5.4 The application generates content based on information that the user uploads to the application himself. The relevance of the content of the Application is therefore influenced by the accuracy, truthfulness and completeness of the information provided by the User to the Application. In the event of a change in the information to be provided in the application, the user is obliged to supplement or change it in the application without delay.
5.5 The User acknowledges that lifestyle changes and possible weight loss may affect the amount of medication used. The User should closely monitor his/her blood glucose while using the Application.
5.6 DMT does not guarantee the achievement of a desired result (e.g. weight reduction by a certain number of kilograms) by using the Application, as this is influenced by various factors that are not under the control and influence of DMT.
5.7 Use requires an active internet connection of the End Device. The User has no claim to restoration of the data in the event that the data has been deleted by the User himself or the User has no access to his data for a reason for which DMT is not responsible.
5.8 The Application may be updated from time to time and supplemented by the addition of new functions. This shall be done automatically and these GTC shall also apply to the updated application. The user is not entitled to reject the changes, as the application is always provided in the current version. However, the User has the option to stop using the application at any time.
5.9 DMT provides the application accessible and functional, subject to any technically required maintenance of the hardware and software by DMT or third parties.
6.1 DMT shall be liable without limitation for all damage caused by DMT or its legal representatives or vicarious agents in the event of intent or gross negligence. DMT shall only be liable for slight negligence in the event of a breach of material contractual obligations, i.e. in the event of a breach of such an obligation which makes the proper performance of the contract possible in the first place and on which the user has relied and was entitled to rely and/or the culpable non-performance of which jeopardises the achievement of the purpose of the contract (cardinal obligation). This liability in the event of a breach of such a material contractual obligation shall be limited in terms of type and amount to the damage typical for the contract, the occurrence of which DMT and the User had to expect at the time of conclusion of the contract on the basis of the circumstances known to them at that time. The existing limitations of liability shall also apply mutatis mutandis in favour of DMT's employees, legal representatives and vicarious agents.
6.2 The above limitations of liability shall not apply in the event of culpable injury to life, limb or health. The provisions of the Product Liability Act shall remain unaffected.
6.3 In particular, DMT shall not be liable to pay damages to the user in the following cases
a.) if the user does not fulfil the technical requirements for accessing and using the app;
b.) in the event of loss, theft, disclosure or misuse of the user's access data;
c.) as a result of the use of the app in violation of these GTC or legal regulations.
6.4 The User further acknowledges that DMT is not responsible for:
a.) Content that the User has inserted into the Application,
b.) ensuring the technical conditions for access and for the use of the Application by the User (including the functionality of the User's hardware and data network).
6.5 DMT shall not be liable for any damages incurred if any statement or information provided by the User turns out to be incomplete or untrue. The User undertakes to fully indemnify DMT and to remedy any negative consequences of such a false or incomplete statement or indication.
6.6 All claims against DMT for damages or reimbursement of futile expenses shall be subject to a limitation period of 2 years from the date on which the User becomes aware of the damage; irrespective of such knowledge, claims for damages shall become statute-barred at the latest after 3 years from the date of the damaging event. This does not apply to liability in the case of intent or gross negligence or in the case of personal injury.
7. Warranty for defects
7.1 Every User is entitled to contact DMT via the e-mail address firstname.lastname@example.org in order to solve problems with the functionality of the application, in particular in cases where the application is not available or not functioning. The User is obliged to provide his/her identification and contact details and to explain his/her request, in particular to describe the problem with the Application and to specify what is required from DMT.
7.2 DMT shall inform the User about the receipt of the User's request and about the processing status of the User's request as soon as possible, but no later than 3 (three) business days after the receipt of the request, by e-mail to the address from which the User contacted DMT. In this confirmation DMT must state when the User made the request, what its content was and what the User is requesting.
7.3 In all other respects, in the event of defects in the application, the statutory provisions on warranty rights in respect of defects shall apply.
8. Granting of rights
8.1 The user acknowledges that the application, its content or its parts or elements are protected as copyrighted works according to § 2 UrhG.
8.2 Upon conclusion of the contract DMT grants the User a non-exclusive right to use the application and its content (hereinafter referred to as "licence") within the scope of the availability of the application. The licence is limited in content to the intended use of the application and is granted for the duration of the contract for use in accordance with the purpose of the application, exclusively for personal use.
8.3 The User is not entitled to impair or modify the Application or its content in any way, to combine it with another work or to include it in a collective work. The User is not entitled to make copies of the Application for purposes other than personal use only. In particular, he is not entitled to reproduce, distribute or make available the application in any way for commercial purposes, unless the User and DMT expressly agree otherwise in writing. For further information on possible commercial uses, the User may contact DMT by email at email@example.com.
8.4 The User is not entitled to grant sub-licences to third parties or to assign the licence to third parties.
8.6 The T&Cs of the Website and the Application apply mutatis mutandis to other intangible assets provided by DMT within the Application (in particular graphics, trademarks, etc.).
8.7 DMT provides the Application exclusively in object code for the available operating systems. The source code of the application is not the subject of this grant of rights.
9. User content
9.1 The User may upload content to the application which may, for example, be protected as a copyrighted work pursuant to § 2 UrhG or as other legally protected intangible property (hereinafter referred to as "User Content"). By uploading the User Content to the Application, the User grants DMT the non-exclusive right to use the User Content, which may be exercised for the entire duration of the Agreement, worldwide and without limitation as to content. DMT is entitled to publish the protected work, to change it (including its title and the name of the author), to combine it with another work, to include it in a collective work or to complete it.
9.2 DMT is entitled to grant sublicences to third parties. In that case, the User agrees to the transfer of the licence to the User Content to third parties. The right to use the User Content is provided by the User free of charge. The contracting parties jointly exclude the User's right to possible additional remuneration for the provision of the User Content, unless this cannot be excluded by agreement of the parties.
9.3 The User warrants that, to the extent required, he holds all necessary rights to the Content inserted into the Application and that DMT will not infringe any third party rights by using the User Content in accordance with these Terms and Conditions. In the event that this statement by the User proves to be false or incomplete, the User undertakes to secure such rights immediately and at their own expense for DMT to the extent required and to indemnify DMT, or their customers or business partners. In addition, they shall indemnify them for any damages incurred in this connection (including in particular any sanctions or court or other procedural costs).
9.4 DMT is entitled at any time to block or restrict the User's account or prevent the User from uploading further User Content to the Application in the event of a breach of its obligations in the following clause 8.
10. Rights and obligations of the user
a.) not infringe the rights of third parties, the operator or other users in connection with the use of the application,
b.) not interfere with the application in an unauthorised manner,
c.) not reproduce, modify, decompile or otherwise interfere with the application, the associated source codes and the documentation, unless expressly authorised to do so,
d.) not use the Application in any way that could damage it (including tampering with the hardware on which the Application is running),
e.) generally not process the personal data of other users visible to him/her in the context of the application, e.g. in chats,
f.) not conceal or falsify his identity.
10.2 The user is also expressly prohibited from publishing, linking or otherwise disseminating infringing or illegal content via the application. This applies in particular to content which
a.) violate the rights of third parties, in particular intellectual property rights or personal rights,
b.) encourage or permit the commission of criminal activities or other unlawful acts or otherwise support the perpetrator of such activities;
c.) are contrary to morality and public order,
d.) are inadmissible or unlawful for other reasons.
10.3 The User is not permitted to upload photos to the Application that contain his/her personal data or the personal data of other persons.
10.4 When using the Application, the User is obliged to take appropriate security, technical and other measures to prevent possible breaches of the security of the Application and the data transmitted therein and to prevent unauthorised use of the Application or the transmitted data and other unauthorised interference with the Application. In particular, the User shall,
a.) provide adequate anti-virus defence on the Devices to prevent unauthorised access to the Application,
b.) not to use shared, publicly accessible devices (e.g. in libraries, etc.) or other unverified devices to access the Application, they should only access the Application using their own secure and authenticated devices; and
c.) not to use publicly accessible networks to access the application and transfer data, in particular unsecured WLAN connections.
11. Right of withdrawal
11.1 Information on the right of withdrawal: You have the right to withdraw from this contract within fourteen days without giving any reason. The revocation period is fourteen days from the day of the conclusion of the contract. In order to exercise your right of cancellation, you must inform DMT of your decision to cancel this contract by means of a clear declaration by e-mail (firstname.lastname@example.org). To comply with the cancellation period, in the case of notification by post or e-mail, it is sufficient if you send the notification of the exercise of the right of cancellation before the end of the cancellation period.
12. Data protection
12.1 The data protection declaration applies to the collection, processing and use of a user's personal data.
13. Mutual communication
13.1 All communications between the User and DMT which relate to or are intended to be made under the Agreement may be made by the User by email to (email@example.com) and may be sent by DMT to the email address of the User specified in the Account.
13.2 In the event of a change in contact details, the User and DMT undertake to notify the other party of such change no later than 14 (fourteen) days after such change occurs.
14. Amendment of the General Terms and Conditions
14.1 DMT reserves the right to amend or update the Terms and Conditions due to changes in the law, changes in jurisdiction or from time to time. DMT will inform users with a registered e-mail address via e-mail and on the website about the amended General Terms and Conditions and make them available for inspection. Any objection must be made in writing by e-mail at firstname.lastname@example.org within 4 weeks of notification of the changes.
14.2 If the User does not object within this period, this shall be deemed to be consent to the amendment. As of the effective date of the new wording of the Terms and Conditions, the previous Terms and Conditions shall cease to apply. In the event that the User does not agree with the changes to the Terms and Conditions, he shall have the right to terminate the contract as of the date on which the new wording of the Terms and Conditions comes into force.
15. Final Provisions
15.1 These General Terms and Conditions as well as all legal relationships resulting therefrom shall be governed by German law.
15.2 If the user is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Berlin. The same shall apply if the user is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, DMT shall also be entitled in all cases to bring an action in accordance with an overriding individual agreement or at the User's general place of jurisdiction. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
15.3 If the User has no general place of jurisdiction in Germany or in another EU member state or has moved his permanent place of residence abroad after these General Terms and Conditions have come into effect or if his place of residence or usual place of abode is not known at the time the action is brought, the exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of DMT.
15.4 Should one or more of the provisions in these GTC be invalid, the remainder of the contract shall remain valid. The parties shall replace an ineffective agreement with an agreement that comes as close as possible to its meaning and purpose.