Preamble
DocCheck Community GmbH, Vogelsanger Straße 66, D-50823 Cologne/Germany, registered in the Commercial Register of the Local Court of Cologne under HRB 31152 (hereinafter "DocCheck") is an Internet service for medical professionals. DocCheck authenticates its users as healthcare professionals and offers a single sign-on for medical professionals. In addition, healthcare professionals can obtain information, communicate with each other, and get training on the DocCheck platform. Providers of pharmaceutical drugs, medicinal products, or medical services can raise awareness of themselves or their products via this platform by means of labelled advertising or ask users questions.
Section 1: General Conditions
§ 1 Scope of services
(1) The following General Terms and Conditions (hereinafter "GTC") of DocCheck Community GmbH, Vogelsanger Straße 66, 50823 Cologne, (hereinafter "DocCheck") shall govern the legal relationship between DocCheck and the respective contractual partner (hereinafter "customer") in addition to individual contractual provisions.
(2) These GTC shall govern in particular the following services provided by DocCheck:
a) Consulting, conception, implementation, and evaluation of scientific research for the purposes of market, opinion, and social research (hereinafter "market research") with a focus on online market research.
b) Advertisements in the onsite and/or e-mail dispatch version of DocCheck News (hereinafter "DocCheck News").
c) Sending of e-mail advertising to DocCheck users who have agreed to receive these e-mails (hereinafter "DocCheck bMail").
d) Placement of advertisements, information on training opportunities, and job advertisements on the DocCheck website in the form of display ads or other formats (hereinafter "onsite advertising materials").
e) Creating or revising editorial content and placing it on DocCheck channels designated for this purpose (hereinafter "channel support").
f) Provision of consulting services and target group analyses in connection with b) to e).
(3) The following General Terms and Conditions of DocCheck shall apply exclusively; DocCheck does not accept any terms and conditions of the customer that conflict with or deviate from these terms and conditions. These terms and conditions also apply if DocCheck carries out the services for the customer without reservation while knowing that the customer's terms and conditions conflict with or deviate from these terms and conditions.
(4) In the event of overlaps and/or conflicts, the individual contractual provisions shall take precedence over these GTC; within these GTC the special provisions for the individual services provided shall take precedence over the general conditions.
§ 2 Scope of the contract
The exact scope of the contract (hereinafter "project") results from the respective individual provisions with their annexes and specifications as well as these GTC (hereinafter "project contract").
§ 3 Time of performance, scheduling
(1) The commencement and duration of performance shall be governed by the respective project contract.
(2) Any schedule shall be drawn up after careful project planning and estimation of resources and time required but shall not include any assurance of a definitive performance or delivery period.
§ 4 Project management
(1) The parties shall each appoint a responsible project manager as a contact person for the project (hereinafter "project manager"). The customer shall ensure that its project manager is authorised to take legally binding action or make legally binding declarations. The project managers shall coordinate the content creation, the scheduling as well as the implementation of and reporting on the projects in regular project meetings and record the key points in a written notification ("minutes"). These also include the programmed surveys based on the agreed questionnaires, which are made available to the customer for testing by means of test links before the launch of the field study.
(2) If the customer does not object to the content of these minutes in whole or in part in writing within three working days of receipt, or immediately in the case of arrangements made and field studies taking place at short notice, the protocols shall be deemed to have been approved with regard to the parts not objected to and shall form the binding basis for future activities.
§ 5 Remuneration, due date
(1) The remuneration to be paid is based on the respective project contract and the agreed order specifications.
(2) All prices are exclusive of value-added tax at the statutory rate applicable at the time of performance.
(3) Travel costs, including accommodation and other expenses, will be invoiced to the customer in accordance with the "Services and Prices" list applicable at the time the contract is concluded.
(4) DocCheck is entitled to claim an appropriate advance payment from the customer. Unless otherwise agreed, one-third of the agreed remuneration is due for payment after the conclusion of the contract and is payable within seven days of the invoice being issued.
(5) Unless otherwise agreed, invoices from DocCheck are to be paid within 14 days of the invoice date. The deduction of a cash discount requires a separate written agreement.
(6) If the customer is in default of payment, DocCheck is entitled to demand interest on arrears in accordance with § 288 German Civil Code (BGB). DocCheck reserves the right to prove that higher damages occurred. The customer is entitled to prove that lower damages occurred.
(7) The customer is only entitled to offset costs if its counterclaims have been legally established, are undisputed, or have been accepted by DocCheck. Furthermore, the customer is only entitled to withhold payments insofar as its counterclaim is based on the same contractual relationship.
§ 6 Change requests
(1) If, after the conclusion of the project contract, the customer wishes to make changes to the services to be provided by DocCheck or requests additional services, DocCheck will inform the customer of the additional work involved, the effect on the time schedule and any additional costs to be incurred.
(2) Insofar as the customer does not immediately object to this notification and approves the implementation of the changes, these changes to the services shall be deemed to have been accepted.
(3) If in its offer DocCheck estimates costs or remuneration to be paid which are exceeded within the scope of the project, DocCheck will also inform the customer of this. Section 2 applies accordingly.
(4) If the customer objects to the schedule changes and/or the additional costs, DocCheck is only obliged to provide the originally agreed services. In this case, the customer has the right to terminate the project contract but is obliged to pay DocCheck for the services provided.
§ 7 Delays, Force Majeure
(1) If DocCheck fails to meet a deadline for the performance of a contractually-agreed service, the customer is entitled to terminate the contract after setting a reasonable period of grace, or to withdraw from the contract.
(2) In the event of force majeure, in particular official decrees, disruptions in third-party networks, strikes, lockouts, and similar events which are outside the sphere of influence of the affected party, the latter shall be released from its performance obligations for the duration and to the extent of the event. The affected party shall immediately inform the other party of the nature and expected duration of the event.
§ 8 Data security, data transmission
(1) DocCheck protects the data on its computer systems against unauthorised electronic access by third parties by means of devices in line with general technical progress and secures the data by means of backup copies. Nevertheless, an intrusion into the system by unauthorised persons ("hackers") cannot be completely ruled out.
(2) If requested by the customer, DocCheck will ensure the security of data transmission by means of suitable technical measures (e.g. server certificates, SSL encryption or VPN). Industrial standards and commercial systems are used for this purpose, for which DocCheck does not guarantee freedom from errors.
(3) Individual access to the system or to project data available online is controlled by a personal user-name/password combination for all participants. The customer itself is responsible for the secrecy and security of the passwords provided to it and is liable for the misuse of this access data.
(4) Should the customer provide DocCheck with personal data, a separate agreement on Commissioned Data Processing (German ADV) will be made.
§ 9 Obligations of the customer to co-operate, delivery of content
(1) The customer is obliged to cooperate immediately and completely in the fulfilment of DocCheck's performance obligations.
(2) The customer is solely responsible for information, advertisements, texts, images, films, graphics, etc. (hereinafter "content") which it makes available to DocCheck for the provision of services. This applies in particular to the observance of copyright, the correctness and completeness of the content as well as its compliance with regard to relevant laws, regulations and voluntary industry codes. The same applies to offers of premiums and the sending of samples or similar in advertisements and e-mails as well as to the functionality of link texts and accessibility of the linked website.
(3) DocCheck is not obliged to check the content supplied by the customer for the infringement of the rights of third parties or for compatibility with legal or governmental regulations or industry or sector agreements.
(4) The customer shall indemnify DocCheck against all claims by third parties that they assert against DocCheck as a result of an infringement of their rights arising from the content supplied by the customer. This also includes the costs of legal action. The same applies if authorities or courts take action against DocCheck because of the content.
(5) Insofar as DocCheck's services are subject to reporting obligations or other legal or governmental requirements, the customer is responsible for ensuring that the relevant reports are made and that DocCheck is fully informed about the necessary reports and requirements.
(6) If the customer does not fulfil its obligations to cooperate, does not do so on time, or does not do so sufficiently, despite being given a reasonable period of grace, DocCheck has the right to terminate the project contract for cause. In this case, the customer is obliged to pay for the services provided by DocCheck up to the time of termination. DocCheck is entitled to demand compensation for the damage caused by additional expenditure or delays in the services. During the period of delay, DocCheck may withhold its performance obligations under the project contract.
§ 10 Warranty
(1) DocCheck does not guarantee any particular success with its services. DocCheck, therefore, does not guarantee that the customer will actually achieve the goals which it is pursuing with the services and results provided by DocCheck.
(2) DocCheck is entitled to rectify any significant discrepancies between the service agreed with the customer and the service actually provided, insofar as this does not involve unreasonable effort. If DocCheck does not succeed within a reasonable period of time in eliminating the discrepancies by means of rectification or circumventing them in such a way that the customer is enabled to use the service provided by DocCheck in accordance with the contract, the customer may reduce the remuneration agreed for the project or withdraw from the contract.
(3) Instead of and under the conditions of the reduction of the remuneration, the customer may terminate the project contract with regard to the respective service without notice. In the event of such termination, the customer must remunerate the cost of DocCheck's services up to that point.
(4) The warranty period is 6 months after the provision of services or acceptance of a service by DocCheck.
§ 11 General liability
(1) DocCheck is liable without limitation in accordance with the statutory regulations for damage caused by intent or gross negligence on the part of DocCheck's legal representatives or senior employees or by serious organisational fault. In addition, DocCheck is only liable, irrespective of the legal grounds, for damage caused by negligent breach of a material contractual obligation in a manner jeopardising the achievement of the purpose of the contract by legal representatives or senior employees of DocCheck.
(2) DocCheck's liability is limited to the typical damage caused by the respective service, the possible occurrence of which DocCheck should have been aware of at the time of the conclusion of the contract based on the circumstances known to it at that time. DocCheck is not liable for indirect damage, consequential damage, loss of profit, and savings not made.
(3) DocCheck accepts no liability for the protectability or registrability of the results supplied (studies, evaluations etc.) under patent, design, copyright, and trademark law.
(4) DocCheck's unlimited liability for personal injury, loss of life, and damage to health as well as liability under the Product Liability Act (Produkthaftungsgesetz) is not affected by the above limitations of liability.
§ 12 Use of work results and contractual services
(1) All rights to ideas, inventions, procedures, concepts, documents, designs, source codes, tools, databases and other technological features in connection with the performance of DocCheck's services, in particular property rights, copyrights and other industrial property rights remain with DocCheck. Unless otherwise agreed in writing, the customer shall on full payment of the agreed remuneration be granted the basic right of use for internal utilisation within the scope of the purpose of the contract.
(2) The customer is not entitled to grant or transfer rights of use to third parties without DocCheck's consent or to process the work and results supplied without DocCheck's consent.
§ 13 Copyrights
The "DocCheck" brand and all contents, designs, and source codes belonging to the DocCheck website are protected by copyright. The customer is not permitted to use the DocCheck brand for its own purposes, nor to download, reproduce or distribute DocCheck designs, contents, or source codes in whole or in part. The automatic or manual extraction of content and its renewed publication on another website or in another database (e.g. meta-search engines, job board search engines), as well as the framing or parsing of pages is not permitted without the written consent of DocCheck.
§ 14 Contact permission
In order to be able to guarantee effective communication between DocCheck and the customer, the customer allows DocCheck from the negotiating stage of a business relationship on (e.g. the requesting of an offer or initial information by the customer), but in all cases during an existing business relationship, to make contact by e-mail, telephone, and post. DocCheck may also use these means of contact, in general, to inform existing or potential customers about current offers, new services, or other content relevant for business.
§ 15 Subcontractors
(1) DocCheck has the right to use subcontractors or freelancers (hereinafter collectively referred to as "service providers") to fulfil the performance obligations as commissioned. These are considered to be vicarious agents of DocCheck. However, DocCheck remains responsible towards the customer for the proper fulfilment of the contract when service providers are used for this purpose.
(2) The customer will be informed by DocCheck about third-party services (e.g. printing, editing, translations, legal advice, image costs etc.) separately. Unless otherwise agreed, third-party services will be commissioned either in the name of and for the account of the customer or in the name of DocCheck and for the account of the customer.
Section 2: Special terms and conditions for market research services
§ 1 Scope of market research services
(1) The overall service to be provided by DocCheck within the scope of DocCheck Insights comprises the devising of the study, the programming of the questionnaires or research communities, the provision of the survey modules on the servers of DocCheck or partners (hosting), the invitations to participate, the interviewing and the management of the project including its evaluation, the compilation of reports and presentation of results with subsequent consulting services and, if applicable, workshops (hereinafter "study").
(2) The cost of the project is calculated according to the accepted specifications. In the event of changes to the aforementioned services, DocCheck reserves the right to recalculate the cost.
(3) Planning and preparatory services (e.g. design of case report forms (CRFs) and observation plan) are to be provided by the customer unless DocCheck has been expressly commissioned to provide these services.
(4) As part of the contract negotiations, the customer will inform DocCheck at an early stage about which particular compliance or pharmacovigilance requirements are to be observed by DocCheck during the execution of the study and will provide in the project briefing the reporting templates to be used. The additional expenses arising from the processing of and compliance with these requirements, such as project management and pharmacovigilance training, screening, and management, will be taken into account and listed as one element of the service commissioned in the calculation of cost.
(5) All statements made regarding sample size are estimates based on experience. However, they cannot be understood as a guarantee or legally binding commitment for the completion of this number of interviews.
(6) Should several projects with the same target group be confirmed at the same time, so that overlaps cannot be avoided, DocCheck reserves the right to proceed according to the first-come-first-served principle. In doing so, the point in time at which the project was confirmed is relevant. In this case, the later project will be postponed with a minimum interval of 1 week between the two field studies
(7) If the respondents who have already been invited cannot take part in a survey for reasons for which DocCheck is not responsible (e.g. access problems or premature closure of the quota by the external host, cancellation of the whole project with immediate termination of the field study or similar), DocCheck is entitled to pay the respondents the full or a partial financial reward (goodwill payments, the amount of which is determined by DocCheck) and also to invoice the customer in full for them.
(8) If a survey is programmed and hosted exclusively by DocCheck (e.g. Field & Tab, MediBus), the following agreements are made:
a) The expected scope of the survey based on the customer enquiry shall determine the costs for financial rewards as well as the management costs. If the real scope of the survey turns out to be different, a corresponding adjustment must be made.
b) The questionnaire shall be delivered by the customer fully ready for use - including all wording, notes, checks, etc. The programming is done on this basis. Additional work will be required to handle any subsequent changes.
c) The questionnaire must be functional with DocCheck's standard programming software. If this is not the case, the questionnaire will be adapted accordingly, or the relevant questions will be programmed separately. Irrespective of these special cases, the scale of the programming can only be precisely estimated once the final version of the questionnaire has been seen.
d) If the additional work results in additional costs, this will be discussed with the customer at an early stage.
§ 2 Placing of order
(1) A written confirmation of order by letter or by e-mail is a condition for DocCheck to provide a service. If the project has already started and is then cancelled by the customer, the services provided will be invoiced in full. The calculation of internal costs shall be determined by the times recorded in the work logs, that of external costs by the invoices of the third parties and, if applicable, financial rewards already paid.
(2) As a rule, invoices are issued after the project has been completed for the full invoice amount (100%). In the case of surveys abroad or surveys with a total value of more than EUR 20,000, 50% shall be invoiced after commissioning and 50% after completion of the project.
Section 3: Special terms and conditions for media services and channel support
§ 1 Advertising materials order
(1) "Advertising materials order" for the purposes of these Terms and Conditions shall be the contract for the placement of advertising materials, job advertisements or information on training (hereinafter collectively referred to as "advertising materials") for the purpose of distribution by electronic means.
(2) The contract between DocCheck and the customer for the ordering of advertising materials is deemed to be concluded if the order is confirmed by DocCheck in writing or by e-mail or messenger. The acceptance of an order can also be tacit.
(3) In the case of direct placement of advertising material by the customer via the web interface offered by DocCheck, the contract comes into effect with the "sending" of the content.
(4) Orders for media services must be received by DocCheck in good time so that the customer can still be informed if the order cannot be carried out in this way.
(5) Category-specific advertising material will be published in the relevant section without this requiring express agreement.
(6) DocCheck reserves the right to refuse to carry out orders for media services, including individual advertisements which are part of a contract for several pieces of advertising. The refusal will be based on objectively justified principles, for example, if their content violates legal regulations, governmental orders and/or voluntary industry agreements. The same applies if their publication is unacceptable for DocCheck, in particular in the case of advertising for services or companies which are in direct competition with DocCheck or its sister companies. These principles also apply to advertising material containing advertising by or for third parties (joint advertising). These require DocCheck's prior written declaration of acceptance in each individual case. The customer will be informed immediately of DocCheck's refusal of an order. Any payments already made will be refunded where possible.
(7) Advertising material that is not recognisable as such due to its editorial design will be made clearly identifiable by DocCheck with notes such as "advertorial", "advertisement" or similar.
(8) DocCheck reserves the right to demand payment in advance when entering into a new business relationship.
§ 2 Order for channel support
(1) A written order confirmation from the customer is required for DocCheck to provide a service within the scope of channel support. This can also take place via messenger or e-mail. The minimum contract period for the provision of services is 12 months. It comprises a fixed monthly support fee that entitles the customer to use a service and advertising material allocation as specified in the order.
(2) DocCheck will charge the agreed monthly support fees and advertising material allocations irrespective of whether the services are actually used by the customer or not. The transfer of advertising material allocations to subsequent months is not possible.
(3) Unless otherwise stipulated, the agreed remuneration shall include one round of editing per service provided. From the 2nd round of editing onwards, invoicing shall be based on time and material expenditure. Alternatively, lump-sum agreements are possible, which DocCheck must have agreed to in writing.
(4) The offer includes a mandatory planning meeting for setting up the channel (hereinafter referred to as "workshop"). The workshop must be carried out no later than two months after confirmation of the order. Within four weeks after the workshop takes place, DocCheck will develop proposals for the setup of the channel as well as an editorial plan for the delivery of the content.
(5) All third-party costs incurred within the scope of the individual order will be charged to the customer in full, with bills and receipts enclosed.
(6) After the expiry of the minimum contract period, individual extension periods of at least 3 months can be agreed upon. Extensions must in each case be requested no later than four weeks before the expiry of the current period in order to ensure the seamless continuation of the support being provided.
§ 3 Delivery of advertising material
(1) The customer is responsible for the delivery of suitable, error-free content and files. The files containing advertising material must be received by DocCheck no later than five working days (DocCheck News) or seven working days (DocCheck bMail and onsite advertising material) before sending or agreed publication.
(2) If the files are not delivered on time or the advertising material is not released on time, this will be deemed to be a cancellation of the order and the charges as stipulated in § 7 of these special GTC will apply.
(3) The files supplied by the customer must be compatible with the programming and delivery software used by DocCheck, the requirements for which will be communicated to the customer in good time. Remuneration for additional software programming or creation is to be paid separately in addition to the fixed fee for the provision of the agreed services.
§ 4 Delivery of material for channel support
(1) The customer must provide DocCheck with the material for the workshop in the form of a written briefing at least two weeks before the agreed workshop date.
(2) The customer is obliged to provide DocCheck with all essential and required data, graphics, images as well as other graphic or multimedia elements to be included ("documents") for the creation of content within the scope of channel support at the latest four weeks before the publication of the respective content as specified in the editorial plan. § 9 numbers 2-4 of the General Terms and Conditions shall apply accordingly.
§ 5 Content
(1) After approval, the customer is solely responsible for all published content as well as for its form and legal admissibility. DocCheck accepts no liability for ensuring that the customer does not contravene any relevant legal provisions when using the services, such as the German Data Protection Regulation (DS-GVO), the Unfair Competition Act (UWG), the German Telemedia Act (TMG), the German Trademark Act (MarkenG), the German Copyright Act (UrhG), the German Drug Advertising Act (HWG) or other relevant provisions. The customer shall indemnify DocCheck against claims by third parties if DocCheck has acted at the express request of the customer. DocCheck is also not liable for the protection under design, copyright and trademark laws of ideas, suggestions, proposals, concepts, and drafts supplied as part of the order. § 9 numbers 2-4 of the General Terms and Conditions apply accordingly. DocCheck accepts no liability for errors in content and/or faulty links.
(2) Unless and until otherwise agreed, the customer acquires, on full payment of the agreed fee as contractually stipulated, the non-transferable rights of use within the contractually defined territory for the exclusive use, unlimited in terms of time and subject matter, of the content, graphics and texts created by DocCheck in its provision of channel support.
(3) Insofar as protected trademarks, logos or wordmarks are used, the customer warrants that it has the necessary rights of use to employ these elements.
(4) The content and form of the advertising material must not be aimed at obtaining data from users (e.g. by requesting or, using technical means, intercepting e-mail addresses). If advertising material breaches this contractual provision, DocCheck is entitled to refuse to send it and/or to demand that the data is not used. The customer indemnifies DocCheck against all claims made against DocCheck in connection with its advertising materials arising from the use of data that does not comply with the law. DocCheck reserves the right to make further claims for compensation.
§ 6 Approval
(1) The customer is responsible for the punctual approval of advertising material and editorial content. The relevant deadlines will be communicated by DocCheck by telephone or in writing during the course of the project. DocCheck will charge the customer for additional costs incurred as a result of the delayed approval of material. These costs will be listed as additional services. If changes are requested by the customer after the approval of material, DocCheck will also charge for the additional work separately.
(2) In the case of e-mail-based advertising material, the customer will receive a test e-mail or a test link prior to sending, which will serve as the basis for approval by the customer.
(3) Changes to advertising materials that are made at the request of the customer after the approval, will not affect their running time, insofar as this does not involve the rectification of an error for which DocCheck is responsible.
§ 7 Cancellation
(1) Cancellation or postponement of an agreed date for the placement or sending of advertising material is possible free of charge up to the 11th working day before the date.
(2) If e-mail-based advertising materials (e.g. DocCheck News, DocCheck bMail) are cancelled, DocCheck will charge the customer cancellation fees. On the basis of the net order value they amount to
without DocCheck being obliged to provide any alternative service.
(3) If advertising materials with an agreed running-time (e.g. display ads) are cancelled, DocCheck will charge the customer cancellation fees. On the basis of the net order value they amount to
without DocCheck being obliged to provide an alternative service.
(4) Within the scope of channel support, the customer has a special right of termination six months after commissioning. The termination must be received by DocCheck no later than four weeks before the end of the six-month period. It can only be made in writing.
§ 8 Availability, sending
(1) DocCheck guarantees an average availability of 99.8 % for advertising material placed on a fee basis on its website (onsite advertising Material) during the agreed running time. Non-availability due to disruptions for which DocCheck is not responsible, in particular in third-party networks, does not entitle the customer to a reduction in price or other claims for compensation.
(2) In the event of the availability of the fee-based advertising material being wholly or partially restricted, with DocCheck being responsible for this disruption, the customer is entitled to a reduction in payment or to flawless alternative material, but only to the same extent to which the advertising material was unavailable. If DocCheck does not adhere to any reasonable period of time given to it to provide this alternative material, or if the availability of the alternative advertising material is again restricted, the customer has the right to a reduction in payment or cancellation of the order.
(3) Advertising material in e-mail formats will only be sent to registered users whose consent has been given to DocCheck. DocCheck guarantees the correct sending to the target group agreed with the customer, but not the opening or reading of the e-mail by the user.
(4) DocCheck endeavours to achieve the widest possible delivery of the e-mail-based advertising material. To this end, DocCheck uses e-mail delivery software with professional whitelisting. However, DocCheck is not responsible for delivery of e-mails being prevented by the individual spam or absence filters of users or providers ("bounce").
(5) The advertising materials will be invoiced on the basis of the delivery statistics used by DocCheck.
(6) DocCheck is not responsible for the success of any advertising campaigns.
§ 9 Allocations
The customer can have up to 10 job advertisements and 5 training notices per month by DocCheck free of charge. In addition, the customer can purchase advertisement allocations for job advertisements which enable it to place more than 10 advertisements.
If you have any questions or suggestions regarding the structure or content of this website, please contact:
DocCheck Community GmbH
Dr. Frank Antwerpes and Julia Kroll
Management
phone: +49 (0)221-92053-0
fax: +49 (0)221-92053-557
e-mail: info(at)doccheck.com
Last change: 06/2022
