General terms and conditions
DHMS DirectHealth Medical Services Ltd
5 Fitzwilliam Street Upper, Dublin 2, D02 YH95, Ireland
These are theGeneral 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 RegistrationNumber 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 "partnerplatforms"). 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
1.1 TheseGTC apply to patients who make use of telemedical health services provided byDHMS 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 GermanCivil 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.
1.2 TheGeneral 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.
1.3 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.
1.4 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 orother 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.
1.5 With the use of the DHMS website as well as with the use of the information an dadvice offered by DHMS, on the partner platforms, these GTC shall also apply tousers who make use of this offer. Any conflicting or deviating terms andconditions of the user shall not apply, even if the person acting on behalf ofDHMS does not separately object to their validity in individual cases.
1.6 DHMSmay amend these GTC at any time, in particular considering the legal,legislative, judicial and/or technical development situation. The currentversion is the one available online at the following address:https://www.dhmsdirecthealthmedicalservices.ie/terms-conditions. The patient/user'sattention 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/userunreservedly agrees. Inthe event of amendments to the GTC, DHMS shall inform the patient/user of suchchange without delay and shall grant the patient/user a reasonable period oftime to make an explicit statement, indicating the intended significance ofsuch conduct.
§2 Subject matter of performance
2.1 DHMSprovides medical and laboratory medical treatment and counselling services (inparticular: diagnosis, therapy recommendation and, if necessary, prescriptionof 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 shallact as vicarious agents of DHMS), who shall perform the health care service onbehalf of DHMS using telecommunications media exclusively (hereinafter alsoreferred to as "telemedical services").
2.2 It isexpressly pointed out that telemedical treatments, i.e., treatments usingexclusively remote communication media, do not constitute a sufficient form ofmedical treatment in all cases. In close cooperation with the Medical AdvisoryBoard of the DHMS and taking into account regulatory framework conditions, alltreatment services offered by the DHMS are comprehensively examined in advanceas to whether they can generally be carried out for the indication in questionthrough the exclusive use of telecommunication media in compliance with thegenerally applicable professional standards for this purpose. Only as soon asthe medical experts have unanimously affirmed this after careful analysis doesDHMS offer the corresponding treatment service via its partner platforms. DHMSuses - insofar as medically justifiable for the specific indication - anamnesisquestionnaires, which are to be completed conscientiously and truthfully by thepatient (see section 4.5 below) and subsequently medically evaluated by the DHMSphysician. These anamnesis questionnaires are also developed and monitored bythe experts of the Medical Advisory Board in relation to the respectiveindication and regularly adapted to the current standards. Consequently, thequestionnaires may differ from one another over time.
2.3 Inaddition to the prior examination of the general suitability of the treatmentof a specific clinical picture using exclusively remote telecommunication media,as described in more detail in section 2.2 above, the physician working forDHMS shall also examine in each specific individual case whether this type oftreatment (telemedical) is medically justifiable for the individual patientand/or his/her condition. This assessment is made conscientiously andindependently by the physician in accordance with his medical diligence; it issubject solely to his individual discretion and not to the instructions of theDHMS.
2.4 If,after conscientious consideration, the physician concludes that exclusiveremote treatment is not suitable in a specific individual case, he/she shalldiscontinue the treatment immediately and inform the patient accordingly. Inthis 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 tovisit a local physician for a physical examination. It is strongly recommendedto follow this request or to seek advice from a local physician in case ofdiscontinuation of treatment.
2.5 If the physician considers the treatment exclusively via telecommunication mediato be medically justifiable, he/she shall carry out the health consultationwith the necessary medical care, in particular regarding the way in which thefindings are ascertained, the consultation, the treatment as well asdocumentation.
2.6 The treatment contract is concluded directly and exclusively between DHMS and thepatient (see in detail below section 5). However, the services are not providedby DHMS personally, but by physicians employed by DHMS or physicians cooperatingwith DHMS. These do not themselves become party to the treatment contract. Inthis respect, DHMS is the sole contact for questions in connection with thetreatment contract, regarding remuneration, contents of the consultation orliability claims.
2.7 DHMS creates the necessary means for the smooth functioning of the services presentedon the partner platforms. DHMS shall implement the necessary measures to ensurethe continuity and quality of the services. The services are provided "asis" and are accessible without any guarantee of availability andregularity. DHMS endeavours to guarantee access to the services for 24 hours aday, 7 days a week, except in cases of force majeure or an event beyond DHMS'scontrol, and subject to periods of maintenance, possible malfunctions,technical hazards related to the nature of the Internet network or maliciousacts or impairments of DHMS's hardware and software.
§3 Service providers, contract performance by employed physiciansand vicarious agents
3.1 DHMSis obliged to provide the service owed under the treatment contract. For thispurpose, it shall make use of the physicians directly employed by it or thirdparties who act as so-called vicarious agents on behalf of DHMS for thefulfilment of the services owed in detail.
3.2 Thefollowing shall act as vicarious agents of DHMS:
· individualregistered medical physicians in Germany or Ireland;
· residentmedical laboratories in Germany;
· inaddition, there are cooperation agreements with the following health careproviders
o Webdoctor Ltd., senior physicianDr. Sylvester Mooney, IMC registration 010015, registered and licensed in Irelandwith the CRO number 536841, head office 20 Knockmeenagh Road, Clondalkin,Dublin 22, Ireland,
o Health Finder Pro Ireland Ltd., seniorphysician Dr. Doniert Alexis Macfarlane, IMC registration 430114, registeredand licensed in Ireland with the CRO number 682654, head office 6-9 TrinityHouse, Dublin 2, Ireland
o iPrimary Care Ltd., senior physicianDr. Niall Adrian Edward Aye Maung, IMC registration 430074, registered andlicensed in Ireland with the CRO number 693679, head office Ground Floor, 71Lower Baggot Street, Dublin 2, Ireland.
3.3 All physicianswho provide health services for DHMS are subject to the respective supervisoryauthorities of their country and are bound by the medical codes of conductrelevant to them. This means in detail:
a. Physicianspractising in Ireland are regulated by the Irish Medical Council (IMC) and, inrespect 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 theirtraining as well as for the medical code of ethics. All Irish physicians providinghealthcare 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 bythe 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 allhealth and care providers.
b. Physicianspractising in Germany are subject to the supervision of the respective medicalassociation responsible for them, of which they are a compulsory member withtheir 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 furthertraining regulations to which all German physicians are bound. In addition, allGerman physicians working for the DHMS are subject to the medical codes ofconduct.
§4 Duties of the patient
4.1 Usersof the DHMS offer presented via the partner platforms, persons interested intreatment and patients affirm that they have full legal capacity or appear withthe consent of their legal representative when receiving the DHMS offer ofservices.
4.2 Usersof the DHMS range of services presented via the partner platforms, personsinterested in treatment and patients assure that they make use of DHMS servicesexclusively in their own name and personally. Use of the DHMS range of servicesin the name of third parties or for the benefit of third parties is notpermissible and shall result in immediate exclusion from use of the DHMS rangeof services.
4.3 Usersof the DHMS offer presented via the partner platforms, persons interested intreatment and patients undertake to ensure that their technical equipment iscapable of supporting the contents of the offer. They themselves must ensurethat the hardware and software of their computers, tablets or mobile phones arestate of the technology. The same shall apply to the performance capacity of aninternet connection when using the services offered by DHMS.
4.4 Usersof the offer presented via the partner platforms, persons interested intreatment and patients assure that their identity corresponds to that of theperson shown. Under no circumstances may they disclose their user accountinformation and access data to third parties or make them accessible to thirdparties in any other way. Users of the DHMS offer undertake to report anyunlawful third-party use of their user account immediately.
4.5 Thefollowing applies to treatment based on the anamnesis questionnaire: Patientsare 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 thecurative treatment. Any changes in the patient's state of health duringtreatment which could influence the physician’s assessment must be reportedimmediately. All information and communications to the user of the DHMS serviceshall be provided in German. The user shall be responsible for taking note ofthis information and communications and being able to comprehend themadequately. Only when he/she has understood all the questions addressed tohim/her in the context of the anamnesis questionnaire will he/she answer themtruthfully and conscientiously. If there are any uncertainties, the patientwill contact the respective customer service of the partner platforms inadvance. Furthermore, it is recommended to visit a local physician and ask forappropriate assistance.
4.6 Thefollowing applies to the laboratory medical analysis: For his or her ownsafety, the patient is obliged to check after receiving the test kit whether heor she has received the correct and ordered test (incorrect delivery), whetherthe outer packaging and any seal are intact, whether the packaging is damagedand 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 testkit and conscientiously take the sample according to the instructions.Furthermore, the patient is obliged to answer truthfully and completely anyenquiries or other questions asked in connection with or for the performance ofthe laboratory evaluation. The patient shall immediately report any changes inhis/her state of health which are or may be likely to influence the laboratoryanalysis.
4.7 Patientsare hereby expressly requested to forward information received from the DHMS physician,especially a physician's letter as well as laboratory analyses to their ownfamily physician and, if necessary, to consult with him/her on this matter.
§5 Patient journey and conclusion of the treatment orlaboratory contract
5.1 Medicaltreatment based on an anamnesis questionnaire
a. Patient journey: The user, who is on one of the partnerplatforms, has the possibility, according to the information made available byDHMS on the respective partner platform, to receive medical treatment by DHMS basedon an anamnesis questionnaire previously completed by him/her. For thispurpose, he/she clicks on the respective "treatment-button" placedat 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 physicalconstitution and his circumstances (collectively referred to as the anamnesisquestionnaire), which he must answer truthfully and conscientiously (see indetail section 4.5 above). The anamnesis questionnaire is the responsibility ofDHMS and becomes part of the treatment contract to be concluded upontransmission to DHMS. The patient'sattention is expressly drawn to this fact. The patient is also expresslyinformed that the anamnesis questionnaire will only be transmitted to DHMSafter payment of the corresponding fee. After complete answering, the patient pays afee for the forthcoming treatment by DHMS to the respective partner platform.By doing so, the patient acquires a so-called treatment voucher from therespective partner platform, which is then redeemed by DHMS immediately afterthe treatment has taken place. This redemption for payment of the treatment feeto which the DHMS is entitled is carried out automatically by the respectivepartner platform, i.e., without any further action on the part of the patient.
b. Conclusionof the treatment contract: After the patient has paid the fee for the purchaseof the treatment voucher to the partner platform, the anamnesis questionnairepreviously completed by him/her is automatically forwarded to DHMS fordiagnostic evaluation. By doing so, the patient accepts the DHMS treatmentoffer presented on the partner platforms. The treatment contract has beenestablished, the obligations for the patient and DHMS arising directly fromthis have arisen.
c. Ifthe information provided by the patient in the anamnesis questionnaire and inany follow-up, discussions is not sufficient to enable an assessment by theresponsible physician, the physician will contact the patient and ask foradditional information. This additionalinformation must be provided within 5 working days. The patient's attention isdrawn to this.
d. If,after thorough and careful medical examination, the physician concludes that itis not possible to treat the patient with the help of the DHMS offer, thepatient will be informed immediately. Section 10.1 shall apply accordingly.
e. If,after a thorough and careful medical examination, the physician concludes thatthe patient's clinical picture is to be treated with a prescription medication,he prescribes this by creating an electronic private prescription, which hethen transmits - if desired by the patient - to a corresponding pharmacy. Acontract for the sale of the medicinal product exists exclusively between thepatient and the pharmacy; DHMS is not a contracting party in this respect.
5.2 Laboratorymedical analysis:
a. Patientjourney: The user, who is on one of the partner platforms, has the possibilityto purchase DHMS’s test kits for self-collection directly from the partnerplatform and to make use of a laboratory medical analysis by DHMS of the samplematerial taken by the patient with the help of the test kit. If the user decideson a specific test for self-collection, he or she selects the correspondingimage and then clicks on the "Order now" button. Afterentering the contact details, the patient pays a fee directly to the respectivepartner platform for the test kit as well as for the upcoming laboratoryanalysis by DHMS. With regard to the laboratory analysis, the patient therebyacquires a so-called test voucher from the respective partner platform, whichis then redeemed directly at the DHMS after the laboratory analysis has been carriedout in lieu of fulfilment. This redemption for payment of the laboratoryanalysis fee to which DHMS is entitled is carried out automatically by therespective partner platform, i.e., without any further action on the part ofthe user.
b. Conclusionof the laboratory contract: After the user has received the test kit purchaseddirectly from the partner platform and has taken the required sample materialin accordance with the instructions, he/she sends this sample to the medicallaboratory acting on behalf of DHMS named to him/her. As soon as the laboratoryworking for DHMS receives the sample, the laboratory analysis contract isestablished and the obligations for the patient and DHMS arising directly fromthis are created. The laboratory acting on behalf of DHMS starts analysing thesample material immediately after receiving it. The contract between the patient and DHMSarises only in relation to the laboratory analysis. The corresponding test kit,on the other hand, is sold exclusively by the respective partner platform - theunderlying purchase contract exists between the patient and the partnerplatform; DHMS is not a party to this purchase contract.
§6 Liability as the contractual health care provider
6.1 The Liabilityregarding injury to life, body and health caused by services rendered by DHMSand its vicarious agents shall be unlimited.
6.2 The Liabilityregarding other damage caused by services rendered by DHMS and its vicariousagents shall be limited to intention and gross negligence. This limitation ofliability shall not apply to claims for damages arising from the breach ofmaterial contractual obligations. Material contractual obligations are thosewhose fulfilment makes the proper performance of the contract possible in thefirst place and on whose compliance the contractual partner regularly relies onand may rely. In the event of a breach of material contractual obligations,however, liability shall generally be limited to the foreseeable damage typicalfor the contract.
6.3 Underno circumstances shall DHMS be liable for indirect damage, in particularconsequential harm caused by a defect and atypical consequential damageincurred by the user using the services. Indirect damages are damages that donot arise exclusively and directly from the failure of DHMS services.
§7 Data protection
7.1 Theprotection of the data provided by the patient for his/her (laboratory) medicaltreatment is a top priority for DHMS. DHMS complies with all data protectionrequirements of the Data Protection Regulation (DSGVO) and the Federal DataProtection Act (BDSG) when processing personal data.
7.2 Thelawfulness of the processing of the patient data results from Art. 6 para. 1lit. b) DSGVO. Furthermore, by paying the fee for the treatment or test voucherto the partner platform and the associated forwarding of the completed anamnesisquestionnaire to DHMS, patients consent to the processing of their personal datato the extent necessary for treatment.
7.3 Furtherdetails regarding data protection can be found in the data protectiondeclaration which can be viewed online on the website https://www.dhmsdirecthealthmedicalservices.ie/.
§8 Right of withdrawal / cancellation policy
8.1 Patientshave the right to revoke the treatment and laboratory contract within fourteendays from the day of the conclusion of the contract (see in detail abovesection 5) without giving reasons. To exercise the right of revocation, onemust inform DHMS, represented by ...by means of a clear declaration (e.g.,e-mail to ...) of one's decision to revoke the contract. To comply with therevocation period, it is sufficient that the notification of the exercise ofthe right of revocation is sent before the expiry of the revocation period.
8.2 Theright of withdrawal for the treatment contract shall expire prematurely as soonas DHMS has provided the service in full and the performance of the service hasonly commenced after the patients, as consumers, have given their expressconsent to this and at the same time confirmed that they are aware that theylose their right of withdrawal upon complete performance of the contract byDHMS.
8.3 Theright of withdrawal for the laboratory analysis contract shall expire prematurelyupon receipt of the test kit and insofar as the performance of the laboratoryservice has only commenced after the patients, as consumers, have given theirexpress consent thereto and at the same time confirmed that they are aware thatthey lose their right of withdrawal upon receipt of the test kit by DHMS or itsvicarious agents.
§9 Termination of the contract
9.1 Thetreatment contract for telemedical services ends through fulfilment of thecontract, referral to another physician or discontinuation of treatment withinthe meaning of section 10 of these GTCs.
9.2 Thecontract may be terminated by the patient at any time.
9.3 The physicianmay only terminate the contract if further treatment is assured unless there isa case of section 10 of these GTC.
§10 Prematuretermination of contract, discontinuation of treatment
10.1 Ifthe attending physician concludes during the treatment that the specialiststandard is not to be complied with in the context of exclusive remotetreatment, he/she shall discontinue the remote treatment. If the attending physiciandeems it necessary, he/she shall refer the patient to a local physician whoshall perform an examination of the patient with immediate physical physician contact.In emergencies, an ambulance service can be alerted by the physician.
10.2 Theattending physician shall discontinue the remote treatment if he/she reachesthe limits of his/her personal, personnel or therapeutic possibilities or ifthe goal of the therapeutic efforts, in particular the healing or recovery ofthe patient, can no longer be achieved. This also applies if the patient doesnot provide the information necessary for treatment despite a request by the physicianin accordance with section 5.1.c.
10.3 Theattending physician will also terminate the remote treatment if the digitaltransmission of information does not comply with the current technicalstandard, the quality of the digital transmission is insufficient, or thepatient is unable to cope with the technical implementation of telemedicalapplications.
10.4 Ifthe patient revokes his/her consent to the remote treatment or makes it clearin some other way (for example by breaking off the communication connection)that he/she does not wish to receive further remote treatment, the remotetreatment relationship ends with immediate effect for the future.
§11 Declarationof confidentiality
Onlythe parties to this GTC Agreement and the individual contractual partners inthe individual contractual relationship are entitled to the content madeavailable by DHMS, on the website and information acquired within the frameworkof individual treatment relationships. The disclosure of any acquiredinformation, apart from personal reports of experiences in dealing with DHMS,to third parties is prohibited.
§12 Consentto data transfer
12.1 Bycompleting the anamnesis questionnaire, the users and patients of the websiteoffer agree to their data being passed on to cooperation partners and orderrecipients of DHMS. The contractual partners are in particular: the WellsterHealth Group, Webdoctor Ltd. as well as the physicians and laboratories usedfor the treatment.
12.2 DHMSshall only disclose such data as is necessary for the treatment of the patientsand fulfilment of the obligations under the treatment contract.
12.3 Patientsand users can request information from DHMS about the cooperation partners towhom their data have been transmitted.
Theinvalidity of one or more provisions of these Terms and Conditions shall notaffect the validity of the remaining provisions.
§14 Agreementon jurisdiction
Anagreement on the place of jurisdiction may be reached by the parties afterthe dispute has arisen.