General terms and conditions
General terms and conditions
DHMS DirectHealth Medical Services Ltd
5 Fitzwilliam Street Upper, Dublin 2, D02 YH95, Ireland
These are the General Terms and Conditions of the Treatment for the telemedical health services and other services provided by DHMS (hereinafter also referred to as “GTC”).
DHMS is a limited company registered in Ireland with its registered office at 5 Fitzwilliam Street Upper in Dublin 2, D02 YH95, Ireland (Company Registration Number 673960). It offers telemedical health services in cooperation with various partners via their internet platforms (in particular www.gospring.de, www.myspring.com, www.easy-testen.de, www.helloeasy.de, www.easyderma.de, www.mysummer.de etc.) (hereinafter also referred to as “partner platforms”). Patients who visit these partner platforms due to a specific health condition and decide to undergo medical treatment are referred to DHMS for this purpose.
DHMS has its own physicians and laboratories, as well as those cooperating with it, who work on behalf of DHMS and carry out treatments. At present, the physicians/laboratories are exclusively based in Germany or Ireland and are registered with the respective medical associations and relevant supervisory authorities (see in detail Section 3). All physicians working for DHMS are highly qualified specialists and are subjected to a demanding selection process in close cooperation with the so-called Medical Advisory Board of DHMS, which is an advisory expert committee consisting of highly renowned medical experts and are continuously measured against the high DHMS quality standards.
These physicians carry out the respective treatment chosen by the patient as telemedical remote treatment. In this respect, the DHMS enables the patient to make use of medical health treatments from licensed physicians exclusively via the Internet. The specific treatment service provided by DHMS and its physicians depend on the services presented on the respective partner platform and can be viewed there in each case.
1 Scope and applicable law
1. These GTC apply to patients who make use of telemedical health services provided by DHMS and to all other users of the other services provided by DHMS. These patients and users are consumers within the meaning of section 13 of the German Civil Code (BGB). A consumer is any natural person who enters a legal transaction for purposes that can predominantly be attributed neither to his/her commercial nor to his/her independent professional activity.
2. The General Terms and Conditions are governed by Irish Law. This does not exclude - as far as relevant - the applicability of mandatory consumer protection provisions of other member states of the EU. Explicit references to the German legal system are excluded from the choice of law.
3. According to the legal principles of private international law, German law applies to non-contractual obligations, provided that the patient claiming the contractual service is located in Germany.
4. Upon selection of one of the presented services on the partner platform by the user visiting the partner platform pursuant to section 5, the GTC of DHMS shall be deemed accepted and shall become an integral part of the treatment contract between the user and DHMS. Conflicting or deviating terms and conditions of the patient shall not apply, even if the person acting on behalf of DHMS does not separately object to their validity in the individual case. The GTC of DHMS shall also apply if telemedical services are performed without reservation or other services are provided for the user in the knowledge of terms and conditions of the patient which conflict with or deviate from these provisions. Individual agreements made with the patient in the specific individual case shall nevertheless take precedence over the DHMS GTC in every case.
5. With the use of the DHMS website as well as with the use of the information and advice offered by DHMS, on the partner platforms, these GTC shall also apply to users who make use of this offer. Any conflicting or deviating terms and conditions of the user shall not apply, even if the person acting on behalf ofDHMS does not separately object to their validity in individual cases.
6. DHMS may amend these GTC at any time, in particular considering the legal, legislative, judicial and/or technical development situation. The current version is the one available online at the following address: https://www.dhmsdirecthealthmedicalservices.ie/terms-conditions. The patient/user’s attention is expressly drawn to the fact that the only binding version of theGTC is the one that can be found online on the website, with which the patient/user unreservedly agrees. In the event of amendments to the GTC, DHMS shall inform the patient/user of such change without delay and shall grant the patient/user a reasonable period of time to make an explicit statement, indicating the intended significance of such conduct.
2 Subject matter of performance
1. DHMS provides medical and laboratory medical treatment and counselling services (in particular: diagnosis, therapy recommendation and, if necessary, prescription of a drug) to patients. For this purpose, it shall use its own physicians, i.e. physicians employed by it or physicians cooperating with it (these physicians shall act as vicarious agents of DHMS), who shall perform the health care service on behalf of DHMS using telecommunications media exclusively (hereinafter also referred to as “telemedical services”).
2. It is expressly pointed out that telemedical treatments, i.e., treatments using exclusively remote communication media, do not constitute a sufficient form of medical treatment in all cases. In close cooperation with the Medical AdvisoryBoard of the DHMS and taking into account regulatory framework conditions, all treatment services offered by the DHMS are comprehensively examined in advance as to whether they can generally be carried out for the indication in question through the exclusive use of telecommunication media in compliance with the generally applicable professional standards for this purpose. Only as soon as the medical experts have unanimously affirmed this after careful analysis does DHMS offer the corresponding treatment service via its partner platforms. DHMS uses - insofar as medically justifiable for the specific indication - anamnesis questionnaires, which are to be completed conscientiously and truthfully by the patient (see section 4.5 below) and subsequently medically evaluated by the DHMS physician. These anamnesis questionnaires are also developed and monitored by the experts of the Medical Advisory Board in relation to the respective indication and regularly adapted to the current standards. Consequently, the questionnaires may differ from one another over time.
3. In addition to the prior examination of the general suitability of the treatment of a specific clinical picture using exclusively remote telecommunication media, as described in more detail in section 2.2 above, the physician working for DHMS shall also examine in each specific individual case whether this type of treatment (telemedical) is medically justifiable for the individual patient and/or his/her condition. This assessment is made conscientiously and independently by the physician in accordance with his medical diligence; it is subject solely to his individual discretion and not to the instructions of the DHMS.
4. If, after conscientious consideration, the physician concludes that exclusive remote treatment is not suitable in a specific individual case, he/she shall discontinue the treatment immediately and inform the patient accordingly. In this case, the patient has no claim to the implementation or continuation of treatment by DHMS; the physician’s decision is binding. Section 5.1.d shall apply. If necessary, the patient will be asked to visit a local physician for a physical examination. It is strongly recommended to follow this request or to seek advice from a local physician in case of discontinuation of treatment.
5. If the physician considers the treatment exclusively via telecommunication media to be medically justifiable, he/she shall carry out the health consultation with the necessary medical care, in particular regarding the way in which the findings are ascertained, the consultation, the treatment as well as documentation.
6. The treatment contract is concluded directly and exclusively between DHMS and the patient (see in detail below section 5). However, the services are not provided by DHMS personally, but by physicians employed by DHMS or physicians cooperating with DHMS. These do not themselves become party to the treatment contract. In this respect, DHMS is the sole contact for questions in connection with the treatment contract, regarding remuneration, contents of the consultation or liability claims.
7. DHMS creates the necessary means for the smooth functioning of the services presented on the partner platforms. DHMS shall implement the necessary measures to ensure the continuity and quality of the services. The services are provided “as is” and are accessible without any guarantee of availability and regularity. DHMS endeavours to guarantee access to the services for 24 hours a day, 7 days a week, except in cases of force majeure or an event beyond DHMS’s control, and subject to periods of maintenance, possible malfunctions, technical hazards related to the nature of the Internet network or malicious acts or impairments of DHMS’s hardware and software.
3 Service providers, contract performance by employed physicians and vicarious agents
1. DHMS is obliged to provide the service owed under the treatment contract. For this purpose, it shall make use of the physicians directly employed by it or third parties who act as so-called vicarious agents on behalf of DHMS for the fulfilment of the services owed in detail.
2. The following shall act as vicarious agents of DHMS:
– individual registered medical physicians in Germany or Ireland;
– resident medical laboratories in Germany;
– in addition, there are cooperation agreements with the following health care providers:
• Webdoctor Ltd., senior physicianDr. Sylvester Mooney, IMC registration 010015, registered and licensed in Ireland with the CRO number 536841, head office 20 Knockmeenagh Road, Clondalkin, Dublin 22, Ireland
• Health Finder Pro Ireland Ltd., senior physician Dr. Doniert Alexis Macfarlane, IMC registration 430114, registered and licensed in Ireland with the CRO number 682654, head office 6-9 Trinity House, Dublin 2, Ireland
• iPrimary Care Ltd., senior physician Dr. Niall Adrian Edward Aye Maung, IMC registration 430074, registered and licensed in Ireland with the CRO number 693679, head office Ground Floor, 71 Lower Baggot Street, Dublin 2, Ireland.
3. All physicians who provide health services for DHMS are subject to the respective supervisory authorities of their country and are bound by the medical codes of conduct relevant to them. This means in detail:
a. Physicians practising in Ireland are regulated by the Irish Medical Council (IMC) and, in respect of their practice in the United Kingdom of Great Britain and NorthernIreland, by the General Medical Council (GMC). They are registered there. TheIrish Medical Council is the regulatory body in Ireland and the General MedicalCouncil is the regulatory body in the United Kingdom of Great Britain andNorthern Ireland for all practising physicians and is responsible for their training as well as for the medical code of ethics. All Irish physicians providing healthcare services to DHMS are bound by the Irish Medical Council’s Code ofMedical Conduct, the Guide to Professional Conduct and Ethics for RegisteredMedical Professionals and the General Medical Council’s Good Medical PracticeGuidelines respectively. All healthcare providers in the UK are regulated by the Care Quality Commission (CQC) and are regularly inspected. The Care QualityCommission is part of the Department of Health and Social Care of the UnitedKingdom of Great Britain and Northern Ireland and is the regulator of all health and care providers.
b. Physicians practising in Germany are subject to the supervision of the respective medical association responsible for them, of which they are a compulsory member with their licence to practise. The medical associations of the “Länder” (Landesärztekammern)are subject to the state supervision of the Federal Medical Association (Bundesärztekammern). With the consent of the competent “Länder” authorities, the medical associations issue, in particular, professional and further training regulations to which all German physicians are bound. In addition, all German physicians working for the DHMS are subject to the medical codes of conduct.
4 Duties of the patient
1. Users of the DHMS offer presented via the partner platforms, persons interested in treatment and patients affirm that they have full legal capacity or appear with the consent of their legal representative when receiving the DHMS offer of services.
2. Users of the DHMS range of services presented via the partner platforms, persons interested in treatment and patients assure that they make use of DHMS services exclusively in their own name and personally. Use of the DHMS range of services in the name of third parties or for the benefit of third parties is not permissible and shall result in immediate exclusion from use of the DHMS range of services.
3. Users of the DHMS offer presented via the partner platforms, persons interested in treatment and patients undertake to ensure that their technical equipment is capable of supporting the contents of the offer. They themselves must ensure that the hardware and software of their computers, tablets or mobile phones are state of the technology. The same shall apply to the performance capacity of an internet connection when using the services offered by DHMS.
4. Users of the offer presented via the partner platforms, persons interested in treatment and patients assure that their identity corresponds to that of the person shown. Under no circumstances may they disclose their user account information and access data to third parties or make them accessible to third parties in any other way. Users of the DHMS offer undertake to report any unlawful third-party use of their user account immediately.
5. The following applies to treatment based on the anamnesis questionnaire: Patients are obliged to answer truthfully and completely all questions asked during the anamnesis, any follow-up discussions and in connection with or for the provision of the curative treatment. Any changes in the patient’s state of health during treatment which could influence the physician’s assessment must be reported immediately. All information and communications to the user of the DHMS service shall be provided in German. The user shall be responsible for taking note of this information and communications and being able to comprehend them adequately. Only when he/she has understood all the questions addressed to him/her in the context of the anamnesis questionnaire will he/she answer them truthfully and conscientiously. If there are any uncertainties, the patient will contact the respective customer service of the partner platforms in advance. Furthermore, it is recommended to visit a local physician and ask for appropriate assistance.
6. The following applies to the laboratory medical analysis: For his or her own safety, the patient is obliged to check after receiving the test kit whether he or she has received the correct and ordered test (incorrect delivery), whether the outer packaging and any seal are intact, whether the packaging is damaged and whether the expiry date printed on the packaging has not yet expired. He/she must then carefully read the instructions for use enclosed with the test kit and conscientiously take the sample according to the instructions. Furthermore, the patient is obliged to answer truthfully and completely any enquiries or other questions asked in connection with or for the performance of the laboratory evaluation. The patient shall immediately report any changes in his/her state of health which are or may be likely to influence the laboratory analysis.
7. Patients are hereby expressly requested to forward information received from the DHMS physician, especially a physician’s letter as well as laboratory analyses to their own family physician and, if necessary, to consult with him/her on this matter.
5 Patient journey and conclusion of the treatment or laboratory contract
1. Medical treatment based on an anamnesis questionnaire
a. Patient journey: The user, who is on one of the partner platforms, has the possibility, according to the information made available by DHMS on the respective partner platform, to receive medical treatment by DHMS based on an anamnesis questionnaire previously completed by him/her. For this purpose, he/she clicks on the respective “treatment-button” placed at various positions on the partner platforms. After clicking on this “treatment-button”, the patient is asked several medical questions relating to his state of health(symptoms, pre-existing conditions, allergies, medication, etc.), his physical constitution and his circumstances (collectively referred to as the anamnesis questionnaire), which he must answer truthfully and conscientiously (see in detail section 4.5 above). The anamnesis questionnaire is the responsibility of DHMS and becomes part of the treatment contract to be concluded upon transmission to DHMS. The patient’s attention is expressly drawn to this fact. The patient is also expressly informed that the anamnesis questionnaire will only be transmitted to DHMS after payment of the corresponding fee. After complete answering, the patient pays a fee for the forthcoming treatment by DHMS to the respective partner platform. By doing so, the patient acquires a so-called treatment voucher from the respective partner platform, which is then redeemed by DHMS immediately after the treatment has taken place. This redemption for payment of the treatment fee to which the DHMS is entitled is carried out automatically by the respective partner platform, i.e. without any further action on the part of the patient.
b. Conclusion of the treatment contract: After the patient has paid the fee for the purchase of the treatment voucher to the partner platform, the anamnesis questionnaire previously completed by him/her is automatically forwarded to DHMS for diagnostic evaluation. By doing so, the patient accepts the DHMS treatment offer presented on the partner platforms. The treatment contract has been established, the obligations for the patient and DHMS arising directly from this have arisen. The doctors of DHMS immediately begin evaluating the anamnesis questionnaire.
c. If the information provided by the patient in the anamnesis questionnaire and in any follow-up, discussions is not sufficient to enable an assessment by the responsible physician, the physician will contact the patient and ask for additional information. This additional information must be provided within 5 working days. The patient’s attention is drawn to this.
d. If, after thorough and careful medical examination, the physician concludes that it is not possible to treat the patient with the help of the DHMS offer, the patient will be informed immediately. Section 10.1 shall apply accordingly.
e. If, after a thorough and careful medical examination, the physician concludes that the patient’s clinical picture is to be treated with a prescription medication, he prescribes this by creating an electronic private prescription, which he then transmits - if desired by the patient - to a corresponding pharmacy. A contract for the sale of the medicinal product exists exclusively between the patient and the pharmacy; DHMS is not a contracting party in this respect.
2. Laboratory medical analysis:
a. Patient journey: The user, who is on one of the partner platforms, has the possibility to purchase DHMS’s test kits for self-collection directly from the partner platform and to make use of a laboratory medical analysis by DHMS of the sample material taken by the patient with the help of the test kit. If the user decides on a specific test for self-collection, he or she selects the corresponding image and then clicks on the “Order now” button. After entering the contact details, the patient pays a fee directly to the respective partner platform for the test kit as well as for the upcoming laboratory analysis by DHMS. With regard to the laboratory analysis, the patient thereby acquires a so-called test voucher from the respective partner platform, which is then redeemed directly at the DHMS after the laboratory analysis has been carried out in lieu of fulfilment. This redemption for payment of the laboratory analysis fee to which DHMS is entitled is carried out automatically by the respective partner platform, i.e., without any further action on the part of the user.
b. Conclusion of the laboratory contract: After the user has received the test kit purchased directly from the partner platform and has taken the required sample material in accordance with the instructions, he/she sends this sample to the medical laboratory acting on behalf of DHMS named to him/her. As soon as the laboratory working for DHMS receives the sample, the laboratory analysis contract is established and the obligations for the patient and DHMS arising directly from this are created. The laboratory acting on behalf of DHMS starts analysing the sample material immediately after receiving it. The contract between the patient and DHMS arises only in relation to the laboratory analysis. The corresponding test kit, on the other hand, is sold exclusively by the respective partner platform - the underlying purchase contract exists between the patient and the partner platform; DHMS is not a party to this purchase contract.
6 Liability as the contractual health care provider
1. The Liability regarding injury to life, body and health caused by services rendered by DHMS and its vicarious agents shall be unlimited.
2. The Liability regarding other damage caused by services rendered by DHMS and its vicarious agents shall be limited to intention and gross negligence. This limitation of liability shall not apply to claims for damages arising from the breach of material contractual obligations. Material contractual obligations are those whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the contractual partner regularly relies on and may rely. In the event of a breach of material contractual obligations, however, liability shall generally be limited to the foreseeable damage typical for the contract.
3. Under no circumstances shall DHMS be liable for indirect damage, in particular consequential harm caused by a defect and atypical consequential damage incurred by the user using the services. Indirect damages are damages that do not arise exclusively and directly from the failure of DHMS services.
7 Data protection
1. The protection of the data provided by the patient for his/her (laboratory) medical treatment is a top priority for DHMS. DHMS complies with all data protection requirements of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG) when processing personal data.
2. The lawfulness of the processing of the patient data results from Art. 6 para. 1 lit. b) GDPR. Furthermore, by paying the fee for the treatment or test voucher to the partner platform and the associated forwarding of the completed anamnesis questionnaire to DHMS, patients consent to the processing of their personal data to the extent necessary for treatment.
3. Further details regarding data protection can be found in the data protection declaration which can be viewed online on the website https://www.dhmsdirecthealthmedicalservices.ie/.
8 Right of withdrawal / cancellation policy
1. Patients have the right to revoke the treatment and laboratory contract within fourteen days from the day of the conclusion of the contract (see in detail above section 5) without giving reasons. To exercise the right of revocation, one must inform DHMS, represented by … by means of a clear declaration (e.g., e-mail to firstname.lastname@example.org) of one’s decision to revoke the contract. To comply with the revocation period, it is sufficient that the notification of the exercise of the right of revocation is sent before the expiry of the revocation period.
2. The right of withdrawal for the treatment contract shall expire prematurely as soon as DHMS has provided the service in full and the performance of the service has only commenced after the patients, as consumers, have given their express consent to this and at the same time confirmed that they are aware that they lose their right of withdrawal upon complete performance of the contract by DHMS.
3. The right of withdrawal for the laboratory analysis contract shall expire prematurely upon receipt of the test kit and insofar as the performance of the laboratory service has only commenced after the patients, as consumers, have given their express consent thereto and at the same time confirmed that they are aware that they lose their right of withdrawal upon receipt of the test kit by DHMS or its vicarious agents.
9 Termination of the contract
1. The treatment contract for telemedical services ends through fulfilment of the contract, referral to another physician or discontinuation of treatment within the meaning of section 10 of these GTCs.
2. The contract may be terminated by the patient at any time.
3. The physician may only terminate the contract if further treatment is assured unless there is a case of section 10 of these GTC.
10 Premature termination of contract, discontinuation of treatment
1. If the attending physician concludes during the treatment that the specialist standard is not to be complied with in the context of exclusive remote treatment, he/she shall discontinue the remote treatment. If the attending physician deems it necessary, he/she shall refer the patient to a local physician who shall perform an examination of the patient with immediate physical physician contact. In emergencies, an ambulance service can be alerted by the physician.
2. The attending physician shall discontinue the remote treatment if he/she reaches the limits of his/her personal, personnel or therapeutic possibilities or if the goal of the therapeutic efforts, in particular the healing or recovery of the patient, can no longer be achieved. This also applies if the patient does not provide the information necessary for treatment despite a request by the physician in accordance with section 5.1.c.
3. The attending physician will also terminate the remote treatment if the digital transmission of information does not comply with the current technical standard, the quality of the digital transmission is insufficient, or the patient is unable to cope with the technical implementation of telemedical applications.
4. If the patient revokes his/her consent to the remote treatment or makes it clear in some other way (for example by breaking off the communication connection) that he/she does not wish to receive further remote treatment, the remote treatment relationship ends with immediate effect for the future.
11 Declaration of confidentiality
Only the parties to this GTC Agreement and the individual contractual partners in the individual contractual relationship are entitled to the content made available by DHMS, on the website and information acquired within the framework of individual treatment relationships. The disclosure of any acquired information, apart from personal reports of experiences in dealing with DHMS, to third parties is prohibited.
12 Consent to data transfer
1. By completing the anamnesis questionnaire, the users and patients of the website offer agree to their data being passed on to cooperation partners and order recipients of DHMS. The contractual partners are in particular: the Wellster Health Group, Webdoctor Ltd. as well as the physicians and laboratories used for the treatment.
2. DHMS shall only disclose such data as is necessary for the treatment of the patients and fulfilment of the obligations under the treatment contract.
3. Patients and users can request information from DHMS about the cooperation partners to whom their data have been transmitted.
13 Severability Clause
The invalidity of one or more provisions of these Terms and Conditions shall not affect the validity of the remaining provisions.
14 Agreement on jurisdiction
An agreement on the place of jurisdiction may be reached by the parties after the dispute has arisen.
Stand: [27. April 2023]