Terms of Service of SYMPTOMA GmbH for „SYMPTOMA“ (Version from 12th January 2017)

THE ENGLISH VERSION OF THE TERMS OF SERVICE IS FOR INFORMATIONAL PURPOSES ONLY! ONLY THE TERMS OF SERVICE IN GERMAN LANGUAGE APPLY! FIND THEM HERE


1. Validity of the Terms of Service

For the search engine SYMPTOMA only the following Terms of Service apply. They also apply to all future business relations, even if they are not explicitly further mentioned. Counter-confirmations of the customer having his own terms and conditions are hereby declined. All other agreements made ​​between the SYMPTOMA GmbH and the customer must be in writing.

2. Service object

2.1

SYMPTOMA GmbH operates the website SYMPTOMA, which holds medical content and data collections.

2.2

SYMPTOMA GmbH allows the customer to access this server for the purpose of research in the medical data collection. The decision to allow access for interested parties is solely made by SYMPTOMA GmbH. SYMPTOMA GmbH can refuse access for interested parties without further explanation.

2.3

SYMPTOMA GmbH is not obliged to provide access to the search engine SYMPTOMA for free. SYMPTOMA GmbH can determine the price of access. In this case, a part of the information and functionality can be provided for free, and the remaining portion will be available for a fee.

2.4

The access to information is done within the framework of this web site or by (smartphone / tablet / etc.) apps.

2.5

SYMPTOMA GmbH grants the individual customers the - not exclusive - right to use the specified medical search engine SYMPTOMA under applicable copyright on one workplace. The use of non-free areas of SYMPTOMA requires the payment by the customer in advance.

2.6

SYMPTOMA GmbH endeavours to keep the information of the search engine up to date and to regularly provide an updated version. Any liability for the medical content is expressly excluded.

2.7

The object of the contract is only the availability of the database SYMPTOMA. A diagnosis is not the object of the contract and is not guaranteed.

3. Scope of Services

3.1

SYMPTOMA GmbH grants its customers non-exclusive and non-transferable right to use the available search engine SYMPTOMA and its medical database in its original format and only for the purpose defined in this contract and only for the duration of the contract. The customer is not entitled to grant sublicenses.

3.2

The customer is not entitled to a particular scope of service of the search engine SYMPTOMA. This applies in particular for the performance of the server and for the medical data collection. SYMPTOMA GmbH therefore expressly reserves the right to change the services to be provided under this contract and to extend, modify or make improvements to the service. The SYMPTOMA GmbH is also entitled to add or reduce services, in particular to take down data and file resources from the server.

3.3

If change of service means that the balance of service and fee is insignificantly compromised, the customer is not not be entitled to a reduction in the monthly payments.

3.4

All present and future rights of whichever nature of the search engine SYMPTOMA and its medical data collection, including the user documentation, belong to SYMPTOMA GmbH, independently of where the data carrier is stored or where copies of the data base are stored. The exception being expressly conceded usage rights given by SYMPTOMA GmbH.

3.5

Any other use, in particular the making of copies or reproductions of the data collection including the user documentation, are only permitted by prior written consent of SYMPTOMA GmbH. Without such approval, the customer may not have a copy of the medical data collection. This includes explicitly so-called spidering / crawling of publicly available information on this website.

3.6

As soon as SYMPTOMA GmbH is aware that individual records or the entire medical data collection of the search engine SYMPTOMA are used in violation of the rights granted hereunder, a penalty of 10,000 euros is due. This does not limit the prosecution of higher levels of damages.

4. Copyright

4.1

The individual data sets and the entire medical data collection of the search engine SYMPTOMA are protected by copyright.

4.2

SYMPTOMA GmbH grants the customer the right to research in the collection of medical data search engine SYMPTOMA according to the specified contract purpose.

4.3

Expressly prohibited is any reproduction, non-conforming use, disclosure, dissemination, publication or other non-conforming use of individual records or the entire medical data collection of SYMPTOMA for commercial or other purposes.

5. Compensation

5.1

The customer shall pay the SYMPTOMA GmbH a monthly fee depending on the package chosen. If the scope of services included in the package is exceeded, then it is possible to be either charged by usage or switch to a package with a greater amount of included services. Payment is done via PayPal, credit card or by invoice if expressly acknowledged.

5.2

All prices are inclusive of VAT.

5.3

If the customer misses a payment, he comes without further notice and grace period in arrears. The SYMPTOMA GmbH is then entitled to prohibit further use of the search engine SYMPTOMA and to block customer access immediately.

5.4

In default of payment the customer is also required to pay interest at the rate of 5% above the base rate.

6. Term and Termination

6.1

The contract commences on the day on which the customer signs up for SYMPTOMA and the account is verified. The contract is closed for an indefinite period. The subscription can be canceled at anytime to the end of the current service month via PayPal or in writing. The customer has the burden of proof for the arrival of the receipt of the cancellation notice.

6.2

If the customer misses the payment for two consecutive months, SYMPTOMA GmbH can terminate the contract without notice. The assertion of further claims is reserved.

6.3

If the customer breaches a contractual obligation, the SYMPTOMA GmbH is entitled to terminate the contract without notice after unsuccessful warning. Among the contractual obligations, the duties and obligations of the 8th paragraph are of particular importance.

In the event that a party repeatedly breaches its obligations the other party has the right to terminate the contract for good cause without warning. An important reason is notably the case where

  • Customer violates this agreement coarse and not has not remedied within a reasonable time, taken the technical and other relevant circumstances into account, or
  • the to fulfill the contract under circumstances of force majeure is disrupted for more than 6 months or if against one of both parties a bankruptcy petition has been filed.

In the case of extraordinary termination by SYMPTOMA GmbH, the customer is liable to a penalty in the amount of all costs for the termination.

7. Data safety and confidentiality

7.1

The medical data collection of the search engine SYMPTOMA is not made​available to customers without the appropriate conditions. Rather, the access to internal areas is configured so that the customer must register prior to the first access.

7.2

The parties are aware that an unauthorized access can never be completely avoided. Therefore, in the case of unauthorized data access the unauthorized user is liable for all damages to both parties to the full extent. There is no liability of SYMPTOMA GmbH exceeding standard legal requirements.

7.3

The parties agree, that all business and technical information they obtained from the other party are confidential if confidentiality was either explicitly mentioned, or it could be assumed due to the circumstances of the disclosure that they are confidential. The information is to be used exclusively for the purposes for which they were asked in the context of the implementation of this agreement.

8. Duties and obligations of the customer

8.1

The customer is obliged to use the individual data sets and medical data collection in the search engine SYMPTOMA in an appropriate manner.

8.2

Faulty use includes in particular

  • any misuse,
  • criminal or illegal activity,
  • a violation of statutory provisions,
  • the non-fulfillment of any legal and regulatory requirements, if they are subject to the use of SYMPTOMA or are related to other matters of this contract,
  • any invasion of privacy of third parties,
  • any compromise of the confidentiality,
  • the formation of a diagnosis based solely on SYMPTOMA,
  • any threat to the security of the system
  • any action and utterances that violate public morals,
  • any contravention of the provisions of these terms
  • omitting the immediate notification of recognizable damages or defects to the SYMPTOMA GmbH,
  • any acts or omissions that endanger the data security,
  • infringement of the obligation to maintain confidentiality of passwords or for immediate change of the password if it is feared that a third party has access to it.

8.3

All information (texts, pictures / photos, audio, documents and personal data) provided on our servers, are protected by copyright and data protection law. In particular the duplication, distribution, exhibition, presentation, transmission or reproduction in any other form and the processing or modification, are only permitted with the prior written approval by the SYMPTOMA GmbH. In particular, the content may not be partly or in entirely be published elsewhere.

8.4

In addition to the data protection law, the customer is obligated to observe telecommunications and e-commerce laws and regulations in particular. The customer is obliged not to enter any data or information that is offending criminal law, public law, public decency or intellectual property rights.

The customer holds the SYMPTOMA GmbH indemnified from claims by third parties due to a violation of the law by the customer.

9. Terms of Payment

9.1

All payments be made by Paypal, credit card or by invoice (if expressly agreed).

9.2

The specified contract rates are billed monthly.

9.3

The prices include VAT.

10. Guarantee

There is no guarantee for the completeness, accuracy or update of the information provided in the search engine. SYMPTOMA GmbH enables the accessibility of the search engine to its paying customers. It does not guarantee a correct diagnosis by use of the search engine. The search engine is only a reference tool. The decision on the diagnosis is always the responsibility of the acting physician.

11. Liability

11.1

The liability of the SYMPTOMA GmbH is limited to deliberate and grossly negligent dereliction of duty.

11.2

SYMPTOMA GmbH is not liable for the transmitted information, and in particular not for its completeness, accuracy or timeliness. There is no liability of the SYMPTOMA GmbH to the result of medical research or the provision of a diagnosis or any treatment on the basis of the information provided here.

11.3

SYMPTOMA GmbH is not liable for the result of medical research or for a diagnosis or any treatment on the basis of the information provided here.

11.4

SYMPTOMA GmbH accepts no liability for damage-causing events that could arise with faulty use of the information.

11.5

SYMPTOMA is not liable for substandard performance or failure in performance resulting due to force majeure or based on events that make a regular service difficult or impossible. For this purpose, included are in particular strikes, lockouts, official orders, failure of communication laws or gateways of other operators, and disorders that are within the risk area of network providers.

11.6

In cases of failures because of a circumstance beyond the responsibility of the SYMPTOMA GmbH the customer is still obliged to pay the monthly fees. There is also no refund of access fees.

11.7

In the event that SYMPTOMA GmbH is liable in this context, the amount is limited to one monthly fee, so far as there was no intent or gross negligence present.

11.8

SYMPTOMA GmbH is liable for damages due to legal errors or guaranteed features or for damages according to the Product Liability Law. For all other cases, SYMPTOMA GmbH is only liable for intent and gross negligence.

11.9

In addition, the parties shall be liable only for intent and gross negligence, so far as contractual obligation is not affected. Damage claims outside this regulatory range are excluded, irrespective of the nature of the breach. This also applies to acts of legal representatives or agents.

12. Use by Third Parties

12.1

The use of search engine SYMPTOMA is solely allowed for the customer himself.

12.2

A use of data by third parties is strictly prohibited without written permission by SYMPTOMA GmbH.

12.3

If use by third parties, in particular by the customer's employees, is permitted, the customer shall at his own responsibility ensure that they comply with the concluded contract. For any breach of contract by the third party, where the use of search engine SYMPTOMA was allowed, only the customer bears the exclusive liability risk.

13. Offsetting and retention

The customer can offset claims against SYMPTOMA GmbH only with undisputed or legally established claims. The customer has the right of retention only for counterclaims resulting under this contract.

14. Evidence clause

The log data stored in the EDV-System of SYMPTOMA GmbH is admitted as evidence of data transfers, access times, transferred amounts of data, contracts and payments effected between the parties.

15. General terms

15.1

SYMPTOMA GmbH is entitled to use third parties to fulfill this contract.

15.2

SYMPTOMA GmbH can use agents to fulfill the contract, if necessary. In this case, however, SYMPTOMA GmbH remains responsible for performance of all obligations of this contract.

16. Miscellaneous

SYMPTOMA GmbH's medical author analysis is based on MEDLINE/PubMed, a database of the U.S. National Library of Medicine (NLM). NLM represents that its data were formulated with a reasonable standard of care. Except for this representation, NLM makes no representation or warranties, expressed or implied. This includes, but is not limited to, any implied warranty of merchantability or fitness for a particular purpose, with respect to the NLM data, and NLM specifically disclaims any such warranties and representations. The data available on symptoma.com may not reflect the most current and accurate biomedical/scientific data available from NLM.

NLM data are produced by a U.S. Government agency and include works of the United States Government that are not protected by U.S. copyright law but may be protected by non-US copyright law, as well as abstracts originating from publications that may be protected by U.S. copyright law.

NLM assumes no responsibility or liability associated with use of copyrighted material, including transmitting, reproducing, redistributing, or making commercial use of the data. NLM does not provide legal advice regarding copyright, fair use, or other aspects of intellectual property rights. Persons contemplating any type of transmission or reproduction of copyrighted material such as abstracts are advised to consult legal counsel.

17. Governing law and jurisdiction clause

This contract is subject to Austrian law. The place of jurisdiction is Salzburg. Only the German language version of these terms apply! The English version is only for informational purposes and not guarantueed to be exactly translated.

18. Writing requirement

Additions to the respective contracts with the customer are required writing. The same applies to the repeal this clause (double writing requirement). Other ancillary agreements in addition to the contract and this terms and conditions do not exist between the parties.

19. Severability

If any provision of the contract concluded or the associated terms and conditions in whole or in parts becomes invalid, this shall not affect the validity of the remaining provisions. Rather the parties undertake to replace the invalid provision with a provision which comes closest to what both parties willed.