General terms and conditions for the Idana application (desktop app, patient app)

Last update: 2018-11-08

Contractual partners

The contractual partners are Tomes GmbH, Engesserstr. 4a, 79108 Freiburg i. Br. as provider and you as entrepreneur within the meaning of §14 BGB (German Civil Code).

Subject of the contract

These contractual conditions apply to the use of the software Idana and the website idana.app of Tomes GmbH in accordance with the current product description as Software-as-a-Service (“SaaS”). The software is provided by the provider for download and as a website and uses server and system components provided by Tomes GmbH as SaaS.

They are enabled to use the software stored and running on the servers of the provider or a service provider commissioned by the provider for their own purposes via an Internet connection during the term of this contract and to store and process their data with their help.

Conclusion of the contract

The contract is concluded with the use of the Idana software.

Conditions of use

In order to use Idana, you must perform the following activities:

  1. download and install the application for practitioners and employees (“desktop app”), which can be downloaded from the homepage idana.one, on a PC with Windows 7 or newer or on a Mac with Mac OS X 10.9 or newer.
  2. provide the patient with the patient application (“patient app”) via the website idana.app. This requires an up-to-date web browser. If the patient app is provided via an app store, it can also be installed via it. The patient app runs on both mobile and stationary devices. The patient can be provided with a device (e.g. a tablet) to fill out or he can be asked to use his own device. The patient can use the patient app both on site and from home or on the road.
  3. Register a user account in the desktop app and use it to log in to the desktop app. Authentication is performed by a user ID (e-mail) and a password (“login password”) via the service provider Auth0 Inc. You can change the password at any time by using the “Forgot password” function.
  4. carry out the registration process, which starts with the first login to the desktop app. In this process the customer data is collected and a key pair consisting of a private and a public key desktop app is generated. The private key is encrypted with a password (“PIN”) that you specify and never transmitted in unencrypted form. The private key is stored offline by you as a recovery key in order to be able to recover the data in the event of password loss.

Services of Tomes GmbH

Idana enables written communication with patients and documentation of their medical history, i.e. symptoms, medical history and relevant background information.

Tomes GmbH provides the software solution Idana for download via an internet connection (desktop app) or as a website (patient app). Using the desktop app, you can configure and manage the questionnaires for patients, view and save the results. The patient app is provided for your patients so that they can fill out the digital questionnaires.

Tomes GmbH operates the server and system components necessary for the operation of Idana and provides them to you as Software-as-a-Service for the duration of the contract. The components are operated in a technically and organizationally secured, high-performance computer center certified according to ISO 27001.

The communication between the software installed by you and the servers provided by Tomes GmbH is carried out exclusively via encrypted connections via HTTPS. All data is stored encrypted in the computer centre.

The patient’s answers are encrypted with your public key in the patient app before they are transmitted and then decrypted locally in the desktop app at your site. No unencrypted patient data is transmitted over the Internet. Neither Tomes GmbH nor the operators of the computer centres can make encrypted patient data readable.

Tomes GmbH does not carry out order data processing for you; all patient data is processed locally in the apps provided in accordance with the actions you carry out.

An exception to the two preceding paragraphs is the use of the Idana e-mail service provided by Tomes GmbH. The patient data specified in more detail in the data protection declaration will be transmitted to Tomes GmbH in order to send the patient instructions on how to start the questionnaire by e-mail. Tomes GmbH accepts no liability for consequences resulting from your inadmissibly transmitting personal data to Tomes GmbH within the scope of the e-mail service.

Purpose

The information provided by Idana may not be interpreted or used as a substitute for medical advice and therapy. The application is not intended to replace or form a basis for medical diagnoses and/or treatments. The application is not a medical device according to its intended purpose. The provider assumes no liability for consequences resulting from the user or third parties using the entered or generated data and information.

Rights of use

Tomes GmbH grants you the non-exclusive, non-transferable, time-limited right to use the Idana software on one or more terminal devices. The software may not be modified – except to the extent necessary to correct an error or to use it as intended – nor may it be redeveloped, further developed or translated. Partial reproduction of the written material for internal purposes is permitted insofar as this is necessary for the intended use of the software.

Your obligations

When ordering the licence, you are obliged to provide true information about the circumstances of use, in particular about the type of equipment (e.g. individual or group practice or clinic department) and the software and hardware environment used.

You must not disclose your user ID, login password, PIN and recovery key to any third party to prevent unauthorized access to sensitive data.

When using the Idana e-mail service, you are obliged to ensure that the transmission of patients to Tomes GmbH to send the e-mail, e.g. with the patient’s consent, complies with data protection regulations.

You are obliged to inform Tomes GmbH immediately of any changes to your contact data via the “My account” page in the desktop app.

You are obliged to notify Idana immediately of any alleged rights asserted by third parties as well as of any defects or damage.

Software updates

Tomes GmbH offers software updates at irregular intervals. If you are connected to the Internet, you will automatically be informed that the desktop app has been updated. The patient app is provided as a website and updated automatically. The update may be delivered with a delay because the patient app is cached locally.

Downloading the software update is a mandatory prerequisite for ensuring that you can use the latest version of the software and make use of the latest functionalities. Tomes GmbH points out that the functionality cannot be used or can only be used to a limited extent if the update is not installed. In this case, Tomes GmbH is exempt from any liability if it can prove that the defect would not have occurred if the latest software version had been installed.

Beta versions

The Tomes GmbH does not grant any guarantees or support for program versions, which are marked as Beta or Devel. This can be recognized, for example, by the file name of the installation or the marking in the App Store. These program versions serve test and development purposes and are not designed for productive operation. For this reason, data loss or incompatibility with other program versions is also possible. Every beta tester should take care to export received reports directly.

Use by third parties / use of the software contrary to contract

You may not sell, rent or lend the Idana software to third parties beyond the scope of this contract, nor may you transfer it to third parties for a limited period of time.

Free trial period

You are entitled to activate the free trial period once, which offers full access to the functions of Idana as described in the service description for 30 days. After the trial period, the account will be automatically terminated as long as you do not purchase a paid license.

You are not permitted to create several user accounts in order to make multiple use of the free test phase. Tomes GmbH reserves the right to deactivate all of your accounts in the event of a violation of this policy and to claim damages if necessary. The registration of several accounts and multiple activation of the test phase is only permitted if these are used by different persons, e.g. different departments of a clinic.

Paid subscription

You can order a paid subscription at any time in order to use Idana for an unlimited period even after the trial period has expired. The conditions listed at the time of ordering apply. The order is possible within the desktop app and via the order form on www.idana.one.

Starter package

You can order a starter set which contains suitable hardware for the use of Idana by patients. Availability and conditions, including payment options and delivery times, can be found in the current service description.

The order represents an offer to conclude a purchase contract. You will receive a message confirming receipt of the order and listing its details. The sales contract comes into effect with the dispatch of the goods, for which you will receive a separate dispatch confirmation. If the purchase contract is not concluded, any amounts already paid will be refunded.

Unless otherwise agreed, delivery will be made to the delivery address specified by you. All information about availability, shipping or delivery of a product are only estimated information and approximate guide values.

If the goods cannot be delivered and you are responsible for this, e.g. by giving a wrong delivery address or being absent at the announced delivery time, you bear the costs for the unsuccessful delivery. For deliveries outside the EU, you will be responsible for any import duties and taxes.

Monthly subscription (“Idana Flexible”)

After processing your order Idana will be activated. The invoice will always be issued at the beginning of each month as a lump sum plus any applicable taxes. Your subscription will be automatically renewed without further notice until you cancel it. As no annual contract is concluded, your fee may change on a monthly basis. However, you will always receive notification of changes in the monthly fee and may cancel your subscription in accordance with these terms and conditions.

Annual subscription (“Idana Plus, Premium and All-Inclusive”)

After processing your order Idana will be activated. The annual rate stated at the time of ordering will be invoiced to you as a lump sum plus any applicable taxes. The invoice is always issued at the beginning of a billing year. Your subscription will be automatically renewed for the original term without further notice until you cancel it. The renewal plan may change, but you will be notified before the plan changes and will be given the opportunity to cancel as provided in these Terms of Use.

Variable price monthly subscription (“Idana Basic”)

After processing your order, Idana will be activated. The fees incurred in each month will be invoiced at the beginning of the following month. The fixed part of the tariff will be invoiced pro rata for the first and last month. Your subscription will be automatically renewed without further notice until you cancel it. As no annual contract is concluded, your fee may change on a monthly basis. However, you will always receive notification of changes in the monthly and variable fee and can cancel your subscription according to these terms and conditions.

Terms of Payment

Each invoice is sent by e-mail to the billing address you have registered and must be paid within fourteen days of receipt by bank transfer or by the alternative payment methods specified in the invoice. If you issue a SEPA Direct Debit Mandate, amounts will be collected on the next but one bank working day after the invoice is issued.

Cancellation

You can cancel your paid license at any time via e-mail to kontakt@idana.one or via fax to 0761 6006784-9. The earliest possible termination date depends on the duration of the ordered tariff. The recording of new surveys will be deactivated at the time of cancellation.

In the event of a cancellation, data already collected can be viewed for a further six months with the desktop app from Idana. After six months, all your data, including stored patient data, will be deleted. You will be given the option to export the patient data to comply with legal retention periods.

Changes to Terms and Conditions, Service Descriptions and Prices

These General Terms and Conditions may be amended insofar as they do not affect essential provisions of the contractual relationship and this is necessary for adaptation to developments which were not foreseeable at the time of conclusion of the contract and the failure to take these into account would noticeably disturb the balance of the contractual relationship. Essential provisions are, in particular, those concerning the type and scope of the contractually agreed services and the term including the provisions on termination. Furthermore, adjustments or additions to the GTC can be made if this is necessary to eliminate difficulties in the implementation of the contract due to loopholes in the provisions that have arisen since the conclusion of the contract. This can be the case in particular if the jurisdiction changes and clauses of these AGB are affected by it.

Delay

In the event of a significant delay in payment, Tomes GmbH is entitled to block the use of the service at your expense. Tomes GmbH reserves the right to assert further claims due to delayed payment.

Rights in case of defects

Tomes GmbH guarantees the contractual quality of the Idana software within the framework of the statutory provisions.

Liability

In the event of intent or gross negligence as well as the absence of a guaranteed characteristic, Tomes GmbH shall be liable without limitation for all damages resulting therefrom. In the event of negligence, Tomes shall be liable without limitation in the event of injury to life, limb and health. In all other respects, liability is excluded, whereby liability under the Product Liability Act remains unaffected.

Applicable Law

The entire contractual relationship between Tomes GmbH and its commercial contractual partner shall be governed by German law to the exclusion of the UN Sales Convention, subject to any other individual agreements. Place of performance towards commercial contractual partners is Freiburg im Breisgau.

German law shall apply to the contractual relationships of the contracting parties. Place of jurisdiction is Freiburg im Breisgau.

The GTC can also be found online at idana.one/en/gtc