Publication date 9/6/23
Effective date 12/6/23
This Terms of Service Agreement ("Agreement") is entered into by and between DasLab GmbH, hereinafter referred to as "DasLab," and the entity or person accessing the Service ("User" or "you").
If you are accessing or using the Service on behalf of your company, you represent and warrant that you are authorised to accept this Agreement on behalf of your company, and all references to 'you' shall reference your company.
The 'Effective Date' of this Agreement shall be the date when the User first uses the DasLab platform. There is no contract with DasLab for the performance and/or evaluation of the selected service, but only for the mediation between users and service performers. This Agreement shall govern the first use of DasLab’ platform services by the User, as well as future use of the platform that references this Agreement. DasLab reserves the right to modify this Agreement as permitted in Section 17 (Modifications to Agreement).
By indicating your acceptance of this Agreement or by accessing or using the Service, you expressly agree to be bound by the terms and conditions set forth in this Agreement. Each party acknowledges and agrees that this Agreement constitutes a legally binding agreement between DasLab and the User.
DasLab offers a platform that connects Healthcare Providers, Medical Laboratories - and other healthcare stakeholders - with Patients, using clear and simple online tools. The platform is designed to allow Healthcare Providers and Medical Laboratories to provide streamlined, digital access to medical diagnostics and related information with the purpose of delivering more effective and efficient healthcare. Data submitted to the platform is shared between the Users of the platform (if consent is given) to achieve this purpose.
During the Subscription Term, User may access and use the platform solely for its internal business or personal purposes, which may include but are not limited to:
in accordance with the Documentation and the terms of this Agreement, including any usage limits specified in an Order.
The user usually also acts as the Administrator.
If you create an account using an email address belonging to your employer or another entity, you represent and warrant that you have the authority to create an account on behalf of that entity. Furthermore, you acknowledge that DasLab may share your email address with the entity (referred to as the 'User') and that control of your account may be transferred to the User. Upon such transfer, the User's designated administrator may have the ability to (i) access, disclose, restrict, or remove information from the account, (ii) restrict or terminate your access to the platform, and (iii) prevent you from disassociating your account from the User at a later time.
The platform is not intended for, and may not be used by, anyone under the age of 18.
User will not (and will not permit anyone else to) do any of the following:
During the Subscription Term, DasLab will provide Support in the form of online chat and email.
DasLab uses reasonable technical and organisational measures designed to protect the platform service and Customer Content.
During the Subscription Term or within 30 days thereafter, Customer may request an export of its User Content from the platform by contacting DasLab customer support. After this export period, DasLab may delete User Content in accordance with its standard schedule and procedures. If User elects to proactively delete its account at any time, all associated User Content will be deleted permanently and cannot be retrieved.
User is responsible for its User Content, including its content and accuracy, and agrees to comply with Laws in using theplatform. User represents and warrants that it has made all disclosures and has all rights, consents and permissions necessary to use its User Content with the platform service and grant DasLab the rights in Section 4.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the User Content.
DasLab may suspend User's access to and use of the platform and related services if User breaches Section 2.5 (Age Requirement for Users), Section 2.6 (Restrictions) or Section 5 (User Obligations), if Users’s account is 10 days or more overdue or if User’s er’s actions risk harm to other users or the security, availability or integrity of the platform or the platform services. Where practicable, DasLab will use reasonable efforts to provide User with prior notice of the suspension. Once User resolves the issue requiring suspension, DasLab will promptly restore User’s access to the platform in accordance with this Agreement.
Any purchased Technical Services are as described in the relevant Order. User will give DasLab timely access to User Materials reasonably needed for the Technical Services, and if User fails to do so, DasLab’s obligation to provide Technical Services will be excused until access is provided. DasLab will use User Materials only for purposes of providing Technical Services. Any Technical Services deliverables relate to the configuration or use of the platform and platform service. User may use Technical Services deliverables only as part of its authorised use of the Service, subject to the same terms as for the platform in Section 2 (The Service) and Section 5 (User Obligations).
DasLab is committed to maintaining a robust approach to the security of our platform and the protection of your data. We employ industry-standard security measures and practices to safeguard your information from unauthorised access, disclosure, alteration, or destruction. Our security measures include encryption, firewalls, access controls, and regular security audits. We continuously monitor and update our systems to stay ahead of emerging threats and ensure the highest level of security for your data.
DasLab warrants to User that:
If DasLab breaches Section 9.1 (Limited Warranty) and User makes a reasonably detailed warranty claim within 30 days of discovering the issue, then DasLab will use reasonable efforts to correct the non-conformity. If DasLab cannot do so within 60 days of User’s warranty claim, either party may terminate the affected Order as relates to the non-conforming Service or Technical Services. DasLab will then refund to User any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). These procedures are User’s exclusive remedy and DasLab’s entire liability for breach of the warranties in Section 9.1. These warranties do not apply to (a) issues caused by misuse or unauthorised modifications, (b) issues in or caused by Third-Party Platforms or other third-party systems or (c) Trials and Betas or other free or evaluation use.
Except as expressly provided in Section 19.1 (Limited Warranty), the platform, the platform service, Support, Technical Services and all related DasLab services are provided “AS IS”. DasLab and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Without limiting its express obligations in Section 3 (Support), DasLab does not warrant that User’s use of the platform will be uninterrupted or error-free or that the platform service will meet User’s requirements, operate in combination with third-party services used by User or maintain User Content without loss. DasLab is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside DasLab’s control. User may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
This Agreement starts on the Effective Date and continues until 90 days after expiration or termination of all Subscription Terms.
Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
Either party may terminate this Agreement (including all Orders) at any time for any reason upon 90 days’ notice to the other party, provided (i) User will not be entitled to a refund of any pre-paid fees and (ii) if User has not already paid all applicable fees for the then-current Subscription Term, any such fees that are outstanding will become immediately due and payable.
Upon expiration or termination of this Agreement or an Order, User’s access to the platform and Technical Services will cease, other than limited use of the Service to export User Content as described in Section 4.3 (Data Export). At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding User Content, which is addressed in Section 4.3). User Content and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.
These Sections survive expiration or termination of this Agreement: 2.6 (Restrictions), 4.3 (Data Export), 5 (User Obligations),, 9.3 (Disclaimers), 10.4 (Effect of Termination), 10.5 (Survival), 11 (Ownership), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 15 (Required Disclosures), 18 (General Terms) and Definitions. Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Neither party grants the other any rights or licences not expressly set out in this Agreement. Except for DasLab’s use rights in this Agreement, between the parties User retains all intellectual property and other rights in User Content and User Materials provided to DasLab. Except for User’s use rights in this Agreement, DasLab and its licensors retain all intellectual property and other rights in the platform, the platform service, any Technical Services deliverables and related DasLab technology. DasLab may generate and use Usage Data to operate, improve, analyse and support the Service and for other lawful business purposes. If User provides DasLab with feedback or suggestions regarding the Service or other DasLab offerings, DasLab may use the feedback or suggestions without restriction or obligation.
The disclaimer in this Section 12.1 (Consequential Damages Waiver) will not apply to the extent prohibited by Laws. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, revenues, goodwill, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.
“Excluded Claims” means: (a) Customer’s breach of Sections 2.6 (Restrictions) or 5 (Customer Obligations), (b) either party’s breach of Section 14 (Confidentiality) (but excluding claims relating to Customer Content), (c) amounts payable to third parties under Customer’s obligations in Section 13.2 (Indemnification by Customer), (d) either party’s wilful misconduct or (e) DasLab’s performance of the Service that results in death, personal injury or damage to tangible property.
The waivers and limitations in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
DasLab will defend User from and against any third-party claim to the extent alleging that the platform, when used by User as authorised in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless User against any damages or costs awarded against User (including reasonable attorneys’ fees) or agreed in settlement by DasLab resulting from the claim.
User will defend DasLab from and against any third-party claim to the extent resulting from User Content, User Materials or User’s breach or alleged breach of Section 5 (User Obligations), and will indemnify and hold harmless DasLab against any damages or costs awarded against DasLab (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.
The indemnifying party’s obligations in this Section 13 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defence and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when DasLab is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
In response to an actual or potential infringement claim, if required by settlement or injunction or as DasLab determines necessary to avoid material liability, DasLab may at its option: (a) procure rights for User’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the platform service to avoid infringement without reducing the platform’s overall functionality or (c) terminate the affected Request and refund to User any pre-paid, unused fees for the terminated portion of the Subscription Term. DasLab’s obligations in this Section 13 do not apply (1) to the extent infringement results from User’s modification of the platform and the platform service or use of the platform in combination with items not specified in the Documentation or provided by DasLab (including Third-Party Platforms), (2) to infringement resulting from Software other than the most recent release provided by DasLab, (3) to unauthorised use of the platform, (4) if User settles or makes any admissions about a claim without DasLab’s prior consent, (5) if User continues to use the platform (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (6) to Trials and Betas or other free or evaluation use. This Section 13 sets out User’s exclusive remedy and DasLab’s entire liability regarding infringement of third-party intellectual property rights.
“Confidential Information" is in particular business secrets in the sense of § 2 No. 1 GeschGehG as well as all information and documents which become known to either party in the course of its activity and which are subject to secrecy according to the recognizable or even only presumed will of the other Party. This includes, for example, all circumstances related to a patient (§ 203 StGB,) as well as facts that are subject to the secrecy of the post or telecommunications (§ 206 StGB). Confidential Information shall in particular encompass any and all technical, technological and commercial information and documents as well as information and documents related to enterprise organisation, and all other information and documents of economic value which are not commonly known.
As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Data Use), and (b) only use Confidential Information to fulfil its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for DasLab, the subcontractors referenced in Section 18.8), provided it remains responsible for their compliance with this Section 14 and they are bound to confidentiality obligations no less protective than this Section 14.
These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.
Unauthorised use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 14.
A violation of this confidentiality agreement can be especially penalized according to §§ 203, 204, 206 StGB and § 23 GeschGehG in connection with § 4 GeschGehG, a violation of this confidentiality agreement can be punished with imprisonment or a fine. User will be informed separately in this context,
Nothing in this Agreement prohibits either party from making disclosures, including of User Content and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, DasLab may include User and its trademarks in DasLab’s user lists and promotional materials but will cease this use at User’s written request.
DasLab may modify this Agreement (which may include changes to platform pricing and plans) from time to time by giving notice to User by email or through the platform. Unless a shorter period is specified by DasLab (e.g., due to changes in the Law or exigent circumstances), modifications become effective upon renewal of User’s current Subscription Term or entry into a new Order. If DasLab specifies that the modifications to the Agreement will take effect prior to User’s next renewal or Order and User notifies DasLab of its objection to the modifications within 30 days after the date of such notice, DasLab (at its option and as User’s exclusive remedy) will either: (a) permit User to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow User to terminate this Agreement and receive a refund of any prepaid Service fees allocable to the terminated portion of the applicable Subscription Term. User may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the platform after the updated version of this Agreement goes into effect will constitute User’s acceptance of such updated version.
Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganisation, acquisition, or other transfer, of all or substantial assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
This Agreement is governed by the laws of the Federal Republic of Germany. The applicability of the U.N. Sales Convention (CISG) is expressly excluded. The general terms and conditions of business of both Parties are expressly excluded. The exclusive place of jurisdiction is the Regional Court Berlin and both parties submit to the personal jurisdiction of this court.
The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.
Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered mail (return receipt requested) or (c) one day after dispatch if by a commercial overnight delivery service. If to DasLab, notice must be provided to:
80539 München, Germany.
Attention: Legal Department.
All notices to DasLab must include a copy emailed to firstname.lastname@example.org. If to User, DasLab may provide notice to the address User provided at registration. Either party may update its address with notice to the other party. DasLab may also send operational notices to User by email or through the platform.
Except as otherwise provided herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorised representatives or, as appropriate, agreed through electronic means provided by DasLab. Nonetheless, with notice to User, DasLab may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease DasLab’s overall obligations during a Subscription Term. The terms in any past, contemporaneous or future User order, business form or vendor management portal will not amend or modify this Agreement and are expressly rejected by DasLab; any of these documents are for administrative purposes only and have no legal effect.
Waivers must be signed by the waiving party’s authorised representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.
Neither party is liable for any delay or failure to perform any obligation under this Agreement due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government licence or natural disaster.
DasLab may use subcontractors and permit them to exercise DasLab’s rights, but DasLab remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
The parties are independent contractors, not agents, partners, or joint venturers.
The Software may incorporate third-party open-source software (“OSS”), as listed in the Documentation or by DasLab upon request. To the extent required by the OSS licence, that licence will apply to the OSS on a stand-alone basis instead of this Agreement.
“Board” means an online virtual whiteboard or other element of the Service displaying Customer Content.
“DPA” means the Data Processing Addendum between the parties, the current version of which is here.
“Documentation” means DasLab’s usage guidelines and standard technical documentation for the Service.
“Healthcare Providers” means doctors (and anyone assisting doctors), clinics or hospitals and their staff, phlebotomists, nurses or similar.
“Laws” means all relevant local, state, federal and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.
“Medical Laboratories” means specialised organisations and their authorised representatives responsible for collecting samples from individual patients and conducting comprehensive analysis on those samples to identify specific biomarkers or indications, providing accurate and detailed reports of the results
“Order/Request” means any DasLab-provided ordering document, online registration or signup, order description or order confirmation referencing this Agreement.
“Platform/ Platform Service” means DasLab’s proprietary cloud service, as identified in the relevant Order and as modified from time to time. The Service includes the Software and Documentation but does not include Technical Services deliverables or Third-Party Platforms.
“Security Policy” means the DasLab Security Policy, the current version of which is here.
“Software” means any DasLab client software, scripts, apps or other code provided to Customer by DasLab for use with the Service.
“Subscription Term” means the term for Customer’s use of the Service as identified in an Order.
“Support” means support for the Service as described in the Support Policy. Customer’s Support level will be identified in its Order.
“Technical Services” means any training, enablement or other technical services provided by DasLab related to the Service, as identified in an Order.
“Third-Party Platform” means any platform, add-on, service, product, app or integration not provided by DasLab that Customer elects to integrate or enable for use with the Service.
“Usage Data” means DasLab’s technical logs, data and learnings about Customer’s use of the Service, but excluding Customer Content.
“User Content” means any data, content or materials that User creates within or submits to the platform.
“User Materials” means materials, systems and other resources that Customer provides to DasLab in connection with Technical Services.