1. Contracting parties / scope of application
1.1 General
The following Terms and Conditions apply between
PGXperts GmbH
Bahnhofplatz 11
90762 Fürth
and the respective user of the online services or the associated software applications (in particular PGXperts InteractionCheck) (hereinafter referred to as “User”), who uses the information and services offered (hereinafter referred to as “Services”).
The online services and related software are available via a web portal (at the URL portal.pgxperts.com), including all subpages, on certain mobile devices (operating systems iOS and Android) and for certain clinical information systems (hereinafter collectively referred to as “PGXperts” or “PGXperts system”).
1.2 PGXperts provides the PGXperts system, on which services are offered exclusively to healthcare professionals within the meaning of Section 2 of the German Therapeutic Products Advertising Act (Heilmittelwerbegesetz), including persons in training for healthcare professions. The correct utilization of the services requires profound medical knowledge. The use of the results arising from the application of the services remains the sole responsibility of the user, they do not represent any recommendation, but only information. The therapeutic sovereignty, in particular with regard to the selection of medications or active substances, remains with the treating physician.
1.3 PGXperts GmbH provides the aforementioned services exclusively on the basis of these Terms and Conditions. Deviating conditions are not recognized unless there is an express written confirmation from PGXperts.
2. Subject matter of the contract
2.1 The services of PGXperts GmbH require registration (clause 3) and include e.g. information and analyses on pharmacogenetics, drug interactions, active ingredients, drugs and food/lifestyle and are based on a careful evaluation of the submitted medication. These services also depend on services provided by third parties, for whose continuation PGXperts GmbH does not assume any liability. However, PGXperts GmbH is committed to continuously updating PGXperts system with data from the ABDA database and other scientifically recognized, publicly accessible sources and to generally provide authorized users with access to PGXperts system at any time. PGXperts GmbH entitled to adjust or discontinue the services at any time. This does not apply to existing contracts or current licenses.
2.2 The Services can be selected and ordered under the heading “Shop” on the web portal or as in-app purchase for mobile devices in their respective current version. The subject matter of the contract is the right to use the services via PGXperts. There are three types of user license: Trial License, Single User License and Group License.
Trial license: The freely available trial license is used exclusively to assess the value of use. It allows the user to use the software free of charge for a one-time period of 14 days exclusively for test purposes. The corresponding usage relationship ends automatically upon expiration of 14 days after successful registration.
Single User license: This user license allows the user the licensed full access and gives the right to use the services via PGXperts system as well as all updates during the respective term, according to these terms
Group License: The use of PGXperts system for a specific group of healthcare professionals, such as a multi-physician practice, a network of physicians, a clinic or an appropriately organized institution requires the purchase of a Group License. This group license allows multiple users of the license to use the services via PGXperts system.
The licenses are granted to the respective registered and (also professionally) authorized user on a personal basis. The Licensee may only transfer a PGXperts license to an equally qualified user in its legal area of responsibility.
3. Registration
3.1 Access to the service of PGXperts system requires the registration of the user. The registration itself is free of charge. The registration is carried out by opening a user account. Within the scope of the registration all mandatory fields have to be filled out completely by the user. The e-mail address provided will be verified during registration process. Registration is only possible if the Terms and Conditions are accepted as legally binding.
3.2 After registration, the user will receive an e-mail to the e-mail address provided by him. A code is transmitted in the e-mail. By entering the code, the user legitimizes himself as the rightful owner of the specified e-mail address and completes the registration process by confirming it. Upon successful completion of the registration process, the user will be able to use the PGXperts GmbH services. This user relationship comes into effect upon completion of the registration and activation of the user account by PGXperts GmbH. A claim to activation and granting of the possibility of use and its availability does not exist.
3.3 There is no legal entitlement to registration. PGXperts GmbH expressly reserves the right to reject registration requests by not activating the corresponding user account.
3.4 The User confirms that he/she has provided truthful information during registration and that he/she will keep this information up to date and correct at all times. PGXperts GmbH reserves the right to verify the identity of the User, to unilaterally revoke the User’s authorization in the event of a serious breach of these Terms of Use and to block access to the PGXperts system. The user is liable for any misuse on his behalf or with his access data for which he is responsible.
3.5 The registration requires the setting of a password. The secrecy of the password is the sole responsibility of the user. The disclosure of the password is prohibited.
3.6 If the user acts as or for a company, i.e. in the exercise of a commercial or self-employed professional activity, or for a public corporation when using PGXperts system, § 312i para. 1 clause 1 nos. 1-3 of the German Civil Code does not apply. This is to be assumed as a rule according to the fundamental orientation of the services.
4. Chargeable services, prices and terms of payment
4.1 Some services can be used free of charge during an initial limited phase after registration; if licenses beyond this are concluded, the fee rates listed in each case under the heading “Shop” on the web portal or as an in-app purchase for mobile devices apply in accordance with the selected service. Details can be found in the pricing table valid at the time of conclusion of the contract.
For the duration of the selected license, the User shall be entitled to make use of it under the Terms of Use and applicable at the time; an extension of the term shall not be automatic. The right of use is not transferable and may only be used personally by the registered user.
4.2 Prior to the conclusion of a paid contractual relationship (license to use), the user shall be informed about the content of the paid service, the prices and the payment modalities and shall receive any relevant mandatory information pursuant to the German Civil Code. Prior to completion of the order process on the PGXperts web portal, PGXperts GmbH will display the entries made by the User in a confirmation window and give the user the opportunity to check and, if necessary, correct his/her entries.
4.3 By confirming the “Buy” button, the User declares that he/she wishes to conclude a contract for the paid services selected by him/her. Confirmation of the “Buy” button merely constitutes an offer by the user to conclude a contract. This is binding for a period of 5 working days. PGXperts GmbH expressly reserves the right to accept or reject the User’s contractual offer within this period. There is no legal entitlement to the conclusion of the contract.
4.4 The acceptance of the offer by PGXperts GmbH and thus the conclusion of the contract arise upon receipt of the e-mail confirmation from PGXperts GmbH to the User.
4.5 The payment options and terms of payment deposited with the Apple App Store or the Google Play Store of Google apply to the user.
4.6 On the PGXperts web portal, payment is made according to the user’s choice by using the payment options offered on the portal. The invoice will be sent electronically in pdf format to the e-mail address provided during registration, the user agrees to this. In case of default payment, PGXperts GmbH reserves the right to make use of its right to refuse performance in accordance with the statutory provisions, for example to unilaterally revoke the user’s authorization to use PGXperts system temporarily and to block access to PGXperts system accordingly. The User is regularly obligated to pay in advance, unless otherwise agreed.
5. Information on the right of withdrawal for consumers in accordance with § 312g para. 1 of the German Civil Code (Bürgerliches Gesetzbuch)
(the right of withdrawal only applies to consumers according to § 13 of the German Civil Code)
Right of withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days starting from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us (PGXperts GmbH, Bahnhofplatz 11, 90762 Fürth, Fax: 0911-937 44 41, E-Mail: customercare@pgxperts.com) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or e-mail). You can use the attached online withdrawal form, but this is not mandatory. To meet the withdrawal deadline, it is sufficient for you to send your notification of exercising your right of withdrawal before the withdrawal period has expired.
Consequences of withdrawal
If you withdraw from this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and no later than within fourteen days from the day on which we received the notification of your withdrawal from this contract. For this refund, we will use the same payment method that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment.
withdrawal form
(If you want to withdraw from the contract, please fill out this form and send it back to us by mail, fax or e-mail).
To
PGXperts GmbH
Bahnhofplatz 11
90762 Fürth
Fax: 0911-937 44 41
E-Mail: customercare@pgxperts.com
I hereby withdraw from the contract concluded by me for the provision of the following service:
… Ordered on … / Received on …
Name of the consumer: …
Address of the consumer: …
Signature of the consumer(s) (only in case of communication on paper/fax): …
Date …
6. Term and termination
6.1 The term of the respective contract for paid services depends on the selected license model. The term begins with the activation of the user account for the use of the respective paid service and ends after the expiration of the period of time provided for in the license model. The contract ends after expiry of the period of use defined by the usage model without separate declaration. Upon expiration of the contract period, the authorization to use the respective paid service ends. The personal user profile on PGXperts system remains in place and continues to be available to the user free of charge.
6.2 The mutual right to extraordinary termination for cause remains unaffected. Such a reason shall exist in particular if one of the contracting parties intentionally violates essential obligations under this contract and thereby substantially infringes the interests and legal interests of the other party. On the part of PGXperts GmbH, a reason for extraordinary termination exists in particular if the User is repeatedly in arrears with payments due after receipt of a payment reminder to a not insignificant extent for more than 10 working days or if PGXperts GmbH permanently ceases operations.
6.3 The extraordinary termination is possible without notice Notice of termination may be given in written form, e.g. by letter or e-mail to customercare@pgxperts.com.
6.4 In the event of an extraordinary termination caused by the user, the user shall not be entitled to a refund of any usage fees already paid.
6.5 Statutory rights of withdrawal shall remain unaffected by the rights of termination regulated above.
7. Technical requirements
7.1 Access to PGXperts system requires the use of current, suitable browser and operating system versions. In order to use our services, it is sometimes necessary to use certain technical systems such as terminal equipment, software programs, transmission paths, telecommunications and other services provided by third parties, which may result in additional costs, in particular connection fees. Connection and data transmission costs, as well as the creation of the technical requirements for the use of the services are the sole responsibility of the user.
8. Availability
8.1 PGXperts GmbH is committed to keep all services offered on PGXperts system available and accessible via Internet at all times. However, the User acknowledges that availability at all times is not owed and cannot be achieved on a regular basis. In particular, temporary inaccessibility of the service may occur, due to both planned and unplanned downtime. This may be due to force majeure, necessary maintenance or repair work or disruptions, including disruptions of third party services, and may be caused by PGXperts GmbH or third parties. PGXperts GmbH shall be entitled to temporarily interrupt, limit or completely discontinue the Service, taking into account the respective legitimate interests of the parties. Services offered free of charge may be terminated or interrupted in whole or in part at any time at PGXperts GmbH´s sole discretion.
8.2 In the event of a foreseeable interruption or discontinuation of the Services, the user will be informed by PGXperts GmbH in due time by sending a notice to the e-mail address provided. An interruption of the provision of services lasting longer than two weeks as a whole entitles the user to terminate the fee-based service in writing (letter or e-mail). In this case, services already paid for and not yet provided by PGXperts GmbH will be refunded pro rata temporis.
9. Legal and material defects, other liability
9.1 PGXperts GmbH does not give any warranty and does not guarantee that the Services comply with the current legal situation and/or the current technical information, but shall endeavor to keep the Services as up-to-date and correct as possible. PGXperts GmbH shall, however, correct any defective Services after becoming aware thereof; if such subsequent performance fails, the User shall be entitled to demand reimbursement of the remuneration paid for the Services in accordance with Section 4.
9.2 Liability for defects in quality and title shall be governed by the provisions of Section 9.1 of these Terms and Conditions. Compensation for damages from a guarantee liability according to § 536a para. 1 p.1 1. alt. BGB for initial defects is excluded. PGXperts GmbH is entitled to interrupt access to PGXperts system at any time for maintenance and repair work. In particular, PGXperts GmbH does not guarantee the unrestricted availability and freedom from viruses of PGXperts system, the clinical usability of the services offered on PGXperts system and for pharmacogenetic effects not yet described in publicly available sources, drug interactions and for incomplete (e.g. self-medication, herbs, dietary supplements) or incorrect information on the actual medication of the patient.
9.3 For all therapy decisions resulting from these services, the individual situation of the patient as well as the current professional information of the respective drug and the health care guidelines must be taken into account. The services are to be understood solely as assistance without legal obligation and do not replace the independent examination and decision of the treating physician, taking into account the individual medical history, regarding the required therapy, the medication and any incompatibilities, side effects or interactions. The responsibility for dispensing or prescribing medications or combinations lies solely with the treating physician.
9.4 The disclaimer in this Section 9 shall not apply in cases of mandatory liability based on intent, gross negligence, personal injury or death, failure to meet guaranteed characteristics, fraudulent concealment of a defect or breach of fundamental contractual obligations.
9.5 In the event of liability that is not unlimited pursuant to Section 9.4, damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract; liability for simple negligent breach of non-material contractual obligations shall be excluded. A reversal of the burden of proof to the disadvantage of the User is not associated with the above provisions of this section 9.
9.6 In case of a liability which is not unlimited according to section 9.4, the liability in case of a breach of essential contractual obligations is furthermore limited per damage event to an amount which corresponds to the amount paid by User to PGXperts GmbH in the 12 months prior to the damaging event.
10. Changes to the terms of use
10.1 PGXperts GmbH explicitly reserves the right to amend these Terms of Use at any time and without stating reasons with effect for the future. PGXperts GmbH will notify the User of any amendment to the Terms and Conditions by e-mail sent to the e-mail address provided by the user in its user account no later than four weeks prior to such amendment becoming effective.
10.2 If not only any future contractual relationship, but also an existing contractual relationship between the respective user and PGXperts GmbH is to be affected by the amendment, the user shall have the right to object to the amendments within four weeks after receipt of the e-mail. If the user does not object within four weeks after receipt of the e-mail, the amended terms of use shall be considered to be accepted. PGXperts GmbH will inform the User accordingly in the e-mail pursuant to Section 10.1. In the event of an objection, the contract shall continue under the previous Terms and Conditions; in such case PGXperts GmbH shall have the right to terminate the contract without notice within a period not exceeding four weeks.
11. Copyrights and ancillary copyrights
The contents published on pgxperts.com and portal.pgxperts.com, the associated subdomains as well as in the PGXperts system are subject to the respective Copyright and neighbouring rights regulations. Any use not expressly permitted by law, including certain reproductions, adaptations (such as a translation), storage and reproduction of content in databases or other electronic media and systems, requires the prior written consent of PGXperts GmbH or the respective rights holder. The license acquired in each case includes only the permissions or rights absolutely necessary for the contractual use in each case, all further rights are expressly reserved.
11.2 All brand names and trademarks mentioned on this website and possibly protected by third parties are subject without restriction to the provisions of the applicable trademark law and the ownership rights of the registered owner. The mere mention of brand names and trademarks on our website does not imply that the content mentioned is not protected by the rights of third parties.
12. Data privacy
PGXperts GmbH is aware of the importance and sensitivity of the data transmitted by its users. Therefore, the responsible handling of the data of its users and respect for the protection of personal data is an essential concern of PGXperts GmbH. Details on data protection can be found in the PGXperts GmbH data protection declaration.
13. Severability clause
Should individual provisions of these Terms and Conditions prove to be invalid or unenforceable or become invalid or unenforceable as a result of changes in legislation after registration, the remaining provisions, which are not affected by this, and the validity of the legal relationship in accordance with the above section 2 of these Terms of Use shall remain unaffected.
14. Place of jurisdiction, applicable law
If the user is a merchant within the meaning of the German Commercial Code, the place of jurisdiction is Fuerth, Bavaria. German law shall apply and the UN Convention on Contracts for the International Sale of Goods shall be excluded. Reference is also made to the possibility of online dispute resolution for consumer disputes: https://ec.europa.eu/consumers/odr. PGXperts GmbH does not participate in the corresponding arbitration for consumers.