1.General, scope of application
1.1. XO Life GmbHXO Life"), Agnes-Pockels-Bogen 1, 80992 Munich, Germany, operates the ImpactMonitor platform, ("Platform") for the digital support of patients. In the Platform, patients can register as users ("Users") specifying which medications and other medical or cosmetic products they take or use, and add spaces that are suitable for them. In the spaces, users are given access to content relevant to them as well as the opportunity to provide comprehensive feedback and experience reports on medications and other products by answering questions and questionnaires ("Patient Experience"). Users are given access to so-called Peer Statistics after answering questions. The peer statistics show which answers other users have given. User participation is rewarded through rewards programs such as the Achievement Program and point systems. XO Life operates its own section on the platform, the MedWatcher ("MedWatcher"), which is displayed to all registered users.
1.2 The customer ("Customer") is a pharmaceutical entrepreneur, medical device manufacturer or other company in the life science industry or a member of medical professions, self-help groups and research institutions.
1.3 Publisher Account in MedWatcher. XO Life customers can obtain a publisher account in MedWatcher in which they can display their own content for users ("customer content"). The customer can define which customer-specific questions it queries via its customer spaces and which customer content it displays to the user.
1.4 These General Terms and Conditions ("Terms of Service") in the version valid at the time of the conclusion of the contract apply to the services provided by XO Life to Customers in connection with the Platform. Acceptance of these GTC is a prerequisite for the use of the services. The GTC of XO Life apply exclusively. The Customer's general terms and conditions do not become part of the contract even if the Customer refers to them and XO Life does not object to their validity.
2. Setup of the publisher account in MedWatcher
2.1 Publisher account setup includes displaying the customer name, publisher logo, and publisher account focus topic.
2.2 The customer is responsible for managing the publisher account and the customer content provided via it. In order to use the Publisher Account, the Customer must be registered and logged in on the Platform. The Customer is responsible for all activities Terms and Conditions ImpactMonitor Platform Publisher Account from XO Life GmbH Status: 07 April 2023 that occur through his Publisher Account and is liable to XO Life in accordance with the law. XO Life is not liable for damages incurred by the Customer as a result of third parties using the access data or the Publisher Account with or without the Customer's knowledge.
2.3 XO Life will maintain the Publisher Account for the term of the Agreement. The Customer is entitled to delete his Publisher Account at any time.
3. Setting up the customer space
3.1 XO Life sets up the customer space in coordination with the customer. The setup includes the adaptation of the customer space to the individual design desired by the customer and the implementation of the customer content developed by the customer in the customer space.
3.2 If XO Life is hindered in the proper performance of its services for reasons for which XO Life is not responsible, it shall inform the Customer of this. This applies in particular in the event that agreed obligations to cooperate have not been or are not properly fulfilled by the Customer.
4. Acceptance of the installation of the customer space
4.1 The Customer shall check and accept the installation of the Customer space for the implementation of the requirements described in the offer ("Acceptability").
4.2 The Customer will check the readiness for acceptance within four weeks after notification of completion of the equipment by XO Life ("readiness for acceptance") unless a different period is specified in the notification of readiness for acceptance. The Customer shall accept the Customer space Equipment at the latest at the end of the period specified in sentence 1 if it is ready for acceptance. The customer may not refuse acceptance due to insignificant defects.
4.3 The customer may declare acceptance expressly or by conclusive action. The equipment shall also be deemed to have been accepted in particular if
4.3.1 the Customer does not refuse acceptance or declare justified reservations against the acceptance capability within the period specified in Clause 6.2 after notification of readiness for acceptance; or
4.3.2 the Customer space is put into operation by mutual agreement of both parties in accordance with Clause 7.1.
4.4 If the Customer reports defects preventing acceptance within the period specified in Section 6.2, acceptance shall be deemed to have failed. XO Life shall remedy the justified defects within a reasonable period of time to be notified to the Customer. Terms and Conditions ImpactMonitor Platform Publisher Account from XO Life GmbH Status: 07 April 2023 Once all defects preventing acceptance have been rectified, XO Life will again declare readiness for acceptance and thus restart the acceptance procedure in accordance with this Clause 6.
5. Commissioning of the customer space
5.1 Unless expressly agreed otherwise, the Customer space shall be put into operation immediately after acceptance ("Commissioning").
5.2 The Parties shall agree on the time of commissioning. In the event of delays in commissioning for which XO Life is not responsible, XO Life is entitled to unilaterally determine a new intended date of commissioning, taking into account the interests of the Customer.
5.3 Upon commissioning, XO Life shall provide the services in accordance with Clause 2.2.2.
6. Cooperation obligations of the customer
6.1 The Customer shall support XO Life in the provision of the services under this contract to the extent necessary by providing additional work. In particular, the Customer shall provide XO Life with the necessary graphic elements and other required information for adaptation to the individual design desired by the Customer as well as the Customer-specific questions and Customer content in a timely manner, but no later than immediately upon request by XO Life.
6.2 If it is not possible for the Customer to cooperate as agreed in a timely manner, the Customer must notify XO Life of this without delay. Delays may lead to a postponement of the date agreed for commissioning in accordance with Clause 7. XO Life will point out corresponding consequences to the Customer. If no date has been agreed for an act of cooperation on the part of the Customer, XO Life will demand the act of cooperation from the Customer in good time.
6.3 Customer is required to provide all software and hardware needed to access the Platform, such as a terminal device, an Internet connection, and compatible web browser software. Additional software may need to be downloaded or installed (e.g., certain software plug-ins or software applications) to access certain services or documents in the Platform.
7. Granting of rights by the customer
7.1 The Customer grants XO Life a worldwide, non-exclusive, sub-licensable right of use to the identifiers (trademarks, trade names or product designations) and to the Terms and Conditions ImpactMonitor Platform Publisher Account from XO Life GmbH Status: 07 April 2023 customer-specific questions and customer content (in text, image, audio and video format) for the purpose of its contractually agreed service provision, insofar as this is necessary for the fulfillment of the contract, for the term of the contract; in particular, XO Life is entitled to copy, transmit, publicly play, publicly perform, reproduce, edit, translate and reformat Customer Specific Questions and Customer Content.
7.2 The Customer represents and warrants that it is the owner of all rights to the Marks, Customer Specific Questions and Customer Content necessary to grant XO Life the rights under Section 9.1.
8. Responsibility for content
8.1 It is not possible for XO Life to control customer-specific questions and customer content. This applies in particular with regard to the accuracy, legality, timeliness and quality as well as the suitability for a specific purpose. The customer is not permitted to post or have posted customer-specific questions and customer content on the platform that
8.1.1 may be punishable (in particular incitement of the people, insult, defamation, threat),
8.1.2 be considered pornographic, vulgar or obscene, harassing or otherwise objectionable,
8.1.3 are anti-constitutional, extremist, racist or xenophobic or represent content originating from banned groups,
8.1.4 violate the rights of third parties (in particular personal rights, copyrights, trademark rights, patent rights, competitor rights or other rights of third parties).
8.2 The Customer shall indemnify XO Life and hold XO Life harmless from and defend XO Life against all claims and demands made against XO Life for infringement of third party rights by the Customer Specific Questions and Customer Content.
9. Blocking of the publisher account or the customer space
9.1 XO Life is entitled to block or delete the Publisher Account or the Customer space, as well as to delete Customer Content and remove Customer-specific questions, if the Customer violates an obligation existing under these GTC or a legal provision or if XO Life has reason to suspect that such a violation has occurred.
10. Granting of rights by XO Life
10.1 All rights to the Platform and its features, as well as to the underlying software, including related software, databases, graphics, user interfaces, designs, and other content, designations, names, and trademarks, shall remain with XO Life and any third Terms and Conditions ImpactMonitor Platform Publisher Account from XO Life GmbH Status: 07 April 2023 parties who have granted XO Life rights in connection with the operation of the Platform.
10.2 The customer receives a free, non-exclusive, non-transferable right, limited in time to the use of the Publisher Accounts, to use the platform as intended. The customer is not entitled to any rights that are not expressly granted to the customer.
10.3 In particular, the Customer may not copy, translate, modify, reverse engineer, decompile or distribute the Platform or any part thereof, including the source code, any copy, adaptation, transcription and any merged part thereof. Customer may not transfer, lease, assign, rent or sublicense the rights granted to it under this Agreement or make the Services available for use by any other person.
11. Updates
11.1 XO Life is entitled at any time to further develop, expand, change or supplement the Platform in part or in whole. XO Life has the right to implement updates and new versions of the Platform at any time as it deems appropriate. In doing so, XO Life will ensure that the functionality of the Customer space and the Customer-specific questions, Customer Content and User Data for the Customer are not impaired.
11.2 XO Life will inform the Customer within a reasonable period of time prior to the effective date of any updates that significantly affect the accessibility or usability of the Customer space for the User.
11.3 The Customer is entitled to request an adjustment, change or addition to its customer- specific questions and customer content at reasonable intervals and to a reasonable extent during the term of the contract. XO Life will implement the Customer's change requests unless the implementation is unreasonable for XO Life or involves disproportionate costs.
12. Start of contract, term, termination
12.1 The contract begins with the confirmation of the registration by the customer.
12.2 The contract can be terminated at any time at the end of a month.
12.3 The right of the parties to extraordinary termination for good cause shall remain unaffected.
12.4 The parties assume that the transfer of user data to the customer and the processing by the customer on the basis of the user's consent obtained during registration is legally permissible. Should a data protection supervisory authority or a court reach a different opinion, both parties shall have the right to terminate this contract extraordinarily and without notice. Further rights of the customer are excluded in this Terms and Conditions ImpactMonitor Platform Publisher Account from XO Life GmbH Status: 07 April 2023 context. In particular, the Customer may not demand reimbursement of the remuneration for the services already provided or compensation for damages or expenses from XO Life for this reason.
12.5 In the event of termination, XO Life will cease operation of the Publisher Account as of the date of termination of the Agreement.
13. Liability and indemnification
13.1 Without prejudice to the following limitations of liability, XO Life shall be liable without limitation for damage to life, limb and health resulting from a negligent or intentional breach of duty by XO Life, its legal representatives or vicarious agents, as well as for damage resulting from intentional or grossly negligent breaches of contract and fraudulent intent by XO Life, its legal representatives or vicarious agents, as well as for damage covered by liability under the Product Liability Act.
13.2 In the event of negligence, XO Life's liability shall be limited to compensation for typical foreseeable damage. In the event of simple negligence, XO Life shall only be liable if it has breached an obligation, the fulfillment of which is a prerequisite for achieving the purpose of the contract and on the observance of which the Customer could rely. XO Life shall not be liable in the event of negligent breach of secondary obligations that are not essential to the contract.
13.3 Any further liability of XO Life is excluded regardless of the legal nature of the asserted claim. Insofar as the liability of XO Life is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
13.4 The Customer shall indemnify XO Life against all reasonable costs and expenses (including all related expenses for legal prosecution and legal defense) incurred by XO Life as a result of third parties asserting claims against XO Life due to the culpable breach of the obligations incumbent on the Customer under this Agreement or by law.
14. Confidentiality
14.1 Each Party undertakes to keep confidential all non-publicly known information, documents and matters of the other (transferring) Party which have a value for that Party, which may be expressed in any form verbally, virtually or in writing and which the (receiving) Party has received in the course of this Agreement, in particular with regard to the following
14.1.1 the business, organizational (including customer and personnel structure, including personal data of the personnel) and operational information of the other party;
14.1.2 any exchanged technological or technical information, including but not limited to any intellectual property, whether or not protectable, source and object code, databases (including their structure and content), content integrated into the System, documentation, designs, algorithms and data files, AI solutions, machine learning methods, know-how, ideas, inventions;
14.1.3 financial information, including pricing;
14.1.4 Trade Secrets;
14.1.5 provisions of this Agreement, including its attachments and future amendments and modifications;
hereinafter collectively referred to as "Confidential Information".
14.2 Each Party undertakes to use such Confidential Information only for the purposes of the contractual relationship commenced and performed on this basis and not to record, disclose or exploit it unless this is necessary to achieve the object and purpose of this Agreement. Subject to clause 21.3 below, they may not be disclosed to third parties.
14.3 A party may only disclose Confidential Information of the other parties if this is required by statutory provisions or orders of governmental bodies or if the other party has given its prior written consent, whereby consent by e-mail shall be sufficient. Each Party shall inform the other Party without undue delay - to the extent legally permissible - as soon as it has been requested by third parties to disclose Confidential Information of the other Parties or is affected by other sovereign measures.
14.4 The parties' employees (i.e., employees and contractors) shall have access to Confidential Information on a need-to-know basis only. The Parties shall ensure that employees comply with the confidentiality obligations arising from this Section 21. If a Party uses professional consultants in connection with this Agreement, disclosure shall only be possible if such consultants are bound by legal duties of confidentiality or confidentiality agreements that are at least as restrictive as this confidentiality obligation.
14.5 This confidentiality obligation shall continue to apply after the end of the term of the Agreement until the Confidential Information loses its confidential character.
15. Privacy
15.1 The parties undertake to comply with the provisions of data protection law applicable to them.
15.2 To the extent that the Parties process Personal Data as joint controllers in the course of the performance of the Agreement, the Joint Controllership Agreement ("Joint Terms and Conditions ImpactMonitor Platform Publisher Account from XO Life GmbH Status: 07 April 2023 Controllership Agreement", Annex 2) shall apply. If and to the extent that XO Life processes personal data on behalf of the Customer, the Parties shall enter into a commissioned processing agreement (Annex 3).
16. Final provisions
16.1 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
16.2 The parties agree that the place of jurisdiction for all disputes arising from or in connection with the contract shall be Berlin.
16.3 Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remainder of the contract. The respective statutory provision shall take the place of the unenforceable or ineffective provision. If statutory law is not available in the respective case, the effective or feasible provision shall apply whose effects come closest to the purpose originally pursued by XO Life and the Customer. The same applies in the event of a loophole.
16.4 XO Life provides the Customer with the GTC in electronic form. To open the PDF file, the free Adobe Reader program (at www.adobe.de) or a comparable program that can handle PDF is required. The customer can print or save the GTC. The customer can also download and archive the GTC in PDF form.
16.5 XO Life may list the Customer's name and logo as a reference on the website or in marketing materials. However, the parties may only publicly report on their services in coordination and insofar as this does not constitute a breach of confidentiality obligations or data protection.
16.6 If XO Life makes innovations to the Platform that were not previously included, XO Life is entitled to introduce new provisions for these innovations or to update these T&Cs insofar as they relate to the innovations.
