The following terms of use for Nelly Solutions apply to contracts entered into on or after 10/18/2023. In the bottom section of this page are those general terms of use for contracts entered into before 10/18/2023.
(hereafter "Terms of Use")
The following terms of use for Nelly Solutions apply to contracts entered into on or after 10/18/2023. In the bottom section of this page are those general terms of use for contracts entered into before 10/18/2023.
1. Scope
1.1 These are the terms of use of Nelly Solutions GmbH, (hereinafter "Nelly"). They govern the business relationship between Nelly and medical practices (hereinafter "practices") that wish to use the Nelly Solutions software (hereinafter "platform") and that conclude a corresponding user agreement with Nelly (hereinafter "user agreement").
1.2 Deviating, conflicting or supplementary General Terms and Conditions of Practices shall only become part of the contract if Nelly has expressly agreed to their validity in text form. This requirement of consent also applies if Nelly begins with the performance of services in knowledge of the general terms and conditions of a practice.
2. Subject matter of the contract
2.1 Nelly offers the Platform as a cloud-based software-as-a-service solution for practices. Via the platform, practices can
2.2 Nelly does not provide any documents, data or other content to the practices themselves, but offers a software solution for organizing and editing practice-owned content that can be uploaded to the platform by employees of the practice (hereinafter "Users") (hereinafter "Practice Content")
2.3 Nelly pays particular attention to the high need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection regulations and on the basis of the agreement concluded with the practice on commissioned data processing. Annex 2 contains further specifications for the protection of personal data that must be observed by the practice
3. Conclusion of contract
3.1 Nelly shall submit an offer to the practice regarding the use of the platform (hereinafter "Offer"). The offer defines in particular the term of the contract and the remuneration to be paid by the practice.
3.2 The fee-based contract of use between Nelly and the practice comes into effect when the offer signed by the practice is received by Nelly. Nelly shall thereupon confirm the conclusion of the contract to the practice in writing or by e-mail.
4. Functions of the platform
4.1 Nelly allows the practice to access the modules selected in the offer.
4.2 Unless otherwise agreed by the Parties in the User Agreement, the aforementioned modules shall include the following functions:
(a) Medical History Module:
(b) Variable Documents Module:
(c) Payment processing module, on behalf of the practice:
(d) Invoice Dispatch Module:
4.3 In all modules, Users can upload or create their own practice content on the platform and complete it based on transmitted and/or Nelly-collected data and signatures of the patients in accordance with Sections 6, 7 or 8. Users can then manage and archive the documents via the platform.
4.4 Further services are not owed by Nelly. In particular, Nelly is not obligated to check whether the intended use of the Practice Content for the Practice's own purposes is lawful.
4.5 Due to the performance of necessary maintenance work and improvements, the platform or individual functions may not be available for a short period of time. In this case, Nelly shall take into account the legitimate interests of the practice, in particular by providing advance information in a timely manner. The claim to use the platform exists only according to the current state of the art and the availability mentioned in clause 10.
5. Access to the platform
5.1 The platform is accessed via an Internet browser. The practice itself must ensure a sufficient Internet connection. The practice is responsible for complying with the system requirements necessary for using the platform, in particular with regard to an up-to-date operating system and browser.
5.2 The number of users authorized to access the platform within the practice is specified in the offer. The Practice may only grant access to the Platform to persons who are employed by the Practice, including temporary staff.
5.3 If the Practice wishes to grant access to the Platform to persons outside its organization (hereinafter "External Users"), it must first obtain Nelly's express consent in text form. Consent for External Users named in the offer is deemed to have been granted. External Users may use the functions of the Platform in the same way as internal users. They are considered vicarious agents of the practice within the meaning of § 278 BGB. The Practice shall indemnify Nelly against all claims asserted by third parties against Nelly due to breaches of contractual or statutory obligations in connection with the performance of this User Contract, insofar as External Users are responsible for these breaches.
5.4 Nelly may temporarily block the Practice's access to the Platform if there are concrete indications that a Practice is in breach of statutory provisions or the obligations arising from this contract or is in default with the payment of remuneration. When deciding whether to block access, Nelly will take into account the legitimate interests of the practice, in particular whether there are indications that the practice is not responsible for the violation. Nelly will lift the block as soon as the breach or default of payment has ended.
6. practice contents and data
6.1 Users can upload practice content (including, in particular, practice documents, practice data and patient data) to the Platform and use and edit it on the Platform.
6.2 The Practice guarantees that no third-party rights conflict with the execution of the contract with regard to all contributions uploaded to the Platform by its Users (in particular practice content and other data).
6.3 The Practice shall indemnify Nelly against all third-party claims resulting from the contractual use of practice content or other data originating from its sphere. In this respect, the Practice shall also bear the costs of any necessary legal defense of Nelly.
7. Digital signatures and patient data
7.1 The Practice has the option via a function of the Platform to obtain signatures of its patients on certain documents as digital signatures. In this case, Nelly will contact the respective patient directly on behalf of the practice. Contact is made via the patient's contact details provided by the practice or by the patient themselves. The Practice guarantees that the establishment of contact by Nelly and the contractual collection of signatures by Nelly does not infringe any third-party rights. This applies in particular to data protection regulations.
7.2 Nelly guarantees that, if necessary, Nelly can provide the Practice with user data relating to digital signatures obtained by Nelly on the basis of the User Agreement, which can be used to clearly determine which person has created the respective digital signature. If it is not possible to identify the person, Nelly shall compensate the Practice for any damage incurred by the Practice as a result. Exceptions to this are signatures that were created based on telephone numbers that do not originate from the EU or the United States.
8. Tablets
8.1 If agreed in the offer, Nelly shall provide the practice with tablets for the duration of the contract, on which patients of the practice who do not have a smartphone can carry out patient admissions. The practice shall pay the rental fee specified in the offer for this.
8.2 The practice is obliged to return the tablets to Nelly at its own expense within one week of the end of the contract term.
8.3 If the Practice discovers that a Tablet is not working properly, the Practice is obliged to inform Nelly of this in text form. At Nelly's request, the Practice is also obliged to return a Tablet to Nelly at Nelly's expense in such a case.
8.4 In the event of damage to or functional impairment of the Tablet, Nelly will charge the Practice a flat fee of EUR 30, unless the Practice is not responsible for the damage to or functional impairment of the Tablet.
9. Payment processing
9.1 Nelly enables the billing and payment processing of treatments carried out for private patients and self-paying patients. To collect the payment data, Nelly contacts the respective patient directly via the platform on behalf of the practice. Contact is made via the patient's contact details provided by the practice or by the patient themselves.9.2 Invoices are issued in the manner specified in the offer:
(a) manually by the practice via the platform or the practice's practice management system, which is linked to the platform via an interface;
(b) by Nelly on behalf of and on the individual behalf of the Practice; or
(c) by Nelly in the name of and on behalf of the Practice through an interface that automatically transmits billing data to Nelly on a regular basis.
In all cases, Nelly creates the invoices through a platform function and delivers them to the patient on behalf of the practice.
9.3 Nelly uses the payment service provider Adyen N.V. German Branch Jägerstraße 27 10117 Berlin ("Adyen") for payment processing. All services associated with payment processing are carried out on behalf of the Practice. A prerequisite for the execution of payment processing is that the Practice concludes a contract for an account with Adyen, as specified in the offer.
9.4 The patient pays the invoice amount directly to Adyen. For this purpose, the patient can use the payment methods specified in the offer. Adyen forwards the payment amount received, less the Nelly and Adyen fees specified in the Offer, to the Practice. At no time does Nelly have access to the invoice amount paid by the patient.
10. Participation of the practice
10.1 The Practice alone is responsible for the accuracy of the Practice Content and other data transmitted to Nelly and entered into the Platform. This also applies in particular to all data that the Practice transmits to Nelly for invoicing purposes.
10.2 If the Practice Content or other data is incorrect, the Practice shall inform Nelly of this immediately.
10.3 The Practice shall also inform Nelly immediately of any defects and malfunctions of the Platform and explain the circumstances in more detail. Nelly will then remedy defects within a reasonable period of time. Nelly is entitled to remedy defects by means of a workaround solution if the cause of the defect itself can only be remedied with disproportionate effort and the usability of the Platform is not significantly impaired.
11. Availability
11.1 Nelly shall provide the services specified in the offer during the agreed operating hours. Unless expressly agreed otherwise in the offer, the operating hours are 8:00 to 18:00 CET or CEST on all calendar days with the exception of Saturdays, Sundays, national public holidays and with the exception of December 24 and 31 of each year.
11.2 Nelly guarantees a minimum technical availability of the Platform of 95% during the operating hours. The availability, expressed as a percentage, is calculated as follows:
Total number of operating time minutes in a calendar month minus the total number of downtime minutes during operating time in the same calendar month divided by the total number of operating time minutes in the same calendar month.
11.3 Service interruptions shall be remedied by Nelly within one week at the latest.
12. Contract duration
12.1 The contract of use has the term specified in the offer. The contract is automatically extended by a further six months 30 days before expiry if the contract has not previously been terminated in text form by one of the parties. The contract can be terminated by either party at any time during the first 30 days after the agreed onboarding date.
12.2 The right of both parties to terminate the contract without notice for good cause remains unaffected. Good cause for termination by Nelly exists in particular if unauthorized third parties gain access to the Platform and the Practice or its Users are responsible for this. There is also good cause for termination by Nelly if the Practice does not comply with the requirements set out in Annex 2.
12.3 Terminations must always be made in writing.
13. Remuneration
13.1 The remuneration to be paid by the Practice is specified in the offer.
13.2 All remuneration specified in the offer or in these Terms of Use shall be subject to statutory VAT.
13.3 Unless expressly agreed otherwise in the offer, the remuneration shall be due for payment within thirty days of invoicing by Nelly.
13.4 Nelly's claim to the remuneration shall arise upon conclusion of this contract of use and shall be independent of whether the Practice actually uses or utilizes the agreed services.
14. Rights of use
14.1 Nelly grants the Practice the non-exclusive, non-transferable and non-sublicensable right to use the Platform during the term of the User Agreement for the purpose provided for in the User Agreement and with the number of Users specified in the Offer.
14.2 The Practice grants Nelly the free, non-exclusive, non-sublicensable and non-transferable rights of use to all Practice Content required for the intended use of the Platform (in particular for the provision of the functions specified in the Offer), in particular, to the extent necessary, the reproduction right, the editing right, the right to keep, transmit and reproduce online as well as the database and archiving right.
14.3 Nelly reserves the right to aggregate non-personal data of the practice and its users and to use it in this form for the purpose of the needs-based design, further development and optimization of the platform and the provision of the service owed under the contract.14.4 The patient information forms provided in the "Patient Information" module are protected by copyright. In addition, rights to the patient education forms provided are protected for types of use unknown at the time of conclusion of the contract. Any duplication, modification or processing (including excerpts) by mechanical, digital or other means is prohibited. Furthermore, the publication and distribution in digital or analog form on image, data and sound carriers of all kinds and the reproduction and distribution of these are also prohibited. The extraction of data from the platform using technical aids or the storage of content in database systems is not permitted.
15. Notes on the use of the contents of the "patient education" module
15.1 Nelly offers the practice patient information forms for doctors in the "Patient information" module in the form of computerized solutions (software). These merely serve to support the individual patient information discussion to be conducted in each case by the person obliged to provide information and to fulfill the legal requirements, in particular § 630e BGB, and cannot replace it.
15.2 Nelly undertakes to review the patient information forms provided or have them reviewed once a year for their technical and content-related accuracy and to provide the Contractual Partner with new or updated versions of the patient information forms, if required by the review.
15.3 The responsibility for complete and accurate patient information that complies with the statutory requirements, in particular Section 630e BGB, shall remain exclusively with the statutory dutyholder, even if the patient information forms are used. There is no complete or partial transfer of the corresponding obligations to Nelly. The practice and the person obliged to provide information are advised that the legal content and scope of the duty to provide information are subject to constant change, in particular due to the legal and professional requirements of the duty to provide information, and new professional findings that may require extended information (e.g. about new or newly recognized treatment risks and new treatment methods).
15.4 The frequency information used in the patient information forms, such as "frequent", "rare", etc. for the complications/risks mentioned therein, only reflect a general assessment of the authors of the patient information forms at the time they were created, which relate to a medical procedure performed in accordance with the rules of good practice. Among other things, they do not correspond to the statistical information on side effects of medicines in package inserts. In the case of frequency information, the doctor must always take into account the individual characteristics of the patient during the informed consent discussion.
15.5 Nelly's patient information forms are intended for exclusive use in the Federal Republic of Germany.
15.6 The right to use the patient information forms provided by Nelly expires after the period of use indicated on them, but at the latest upon expiry of the contract between Nelly and the Practice regarding their use. The Practice undertakes to delete or destroy all physical or digital copies of the sample patient information forms in its possession after the expiry of the rights of use.
16. Limitation of liability
16.1 Insofar as Nelly provides the practice with access to websites, APIs, databases or other infrastructures of third parties, Nelly shall neither be responsible for their availability nor for contents obtained therefrom (in particular content or quality of data). Nelly's liability for damages to the practice resulting therefrom is therefore excluded to the extent permitted by law.
16.2 Nelly shall be liable for damages insofar as these were caused intentionally or by gross negligence on the part of Nelly or result from Nelly's breach of obligations, the fulfillment of which is essential for the proper performance of this contract and on the compliance with which the practice may rely, so-called material contractual obligations. Except in the case of intent or gross negligence, Nelly's liability for material contractual obligations shall be limited to the amount of damages typically foreseeable at the time of the conclusion of the contract.
16.3 Apart from that, Nelly's liability is excluded, irrespective of its legal basis, unless Nelly is compulsorily liable by law, in particular due to injury to life, body or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or according to the Product Liability Act. Guarantees by Nelly are in principle only made in writing and are designated as such.
16.4 The limitations of liability of the preceding paragraphs shall also apply to claims against legal representatives, executives, employees and agents as well as other vicarious agents of Nelly.
17. Secrecy
17.1 The parties undertake to treat as confidential all confidential information of the other party, for example of a technical, commercial or organizational nature, which becomes known to them during the performance of the contract of use, and to use it only for contractually agreed purposes. The confidentiality obligation shall not apply to persons who are authorized to know and are legally or contractually obliged to maintain confidentiality or if the other party has consented to disclosure.
17.2 Confidential information within the meaning of this provision is practice content, documents, details, data and information that is designated as confidential or is to be regarded as confidential by its nature. The term Confidential Information does not include information that (i) is or becomes in the public domain or generally available (except as a result of a breach of this Agreement by the receiving party or one of its representatives); (ii) was already lawfully and without obligation of confidentiality in the possession of the receiving party before it received it from the disclosing party; or (iii) was received from a third party who is authorized to disclose such information without restriction.
17.3 If a party is obliged to make confidential information of the other party available to a public body in the aforementioned sense, it shall be entitled to do so; the other party shall be informed immediately and, if possible, before the information is released to the public body.
17.4 The rights and obligations of this Clause 15 shall not be affected by the termination of this Agreement.
18. Data protection
18.1 Nelly knows and respects the special need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection provisions. The agreement on commissioned data processing in Annex 1 applies to the protection of personal data.
18.2 The practice is responsible for obtaining the necessary declarations of consent from the users of the platform and their patients for the processing of personal data via the platform. In addition, the practice is obligated to comply with the specifications from Appendix 2.
18.3 Nelly shall take technical and organizational measures to protect the data against unauthorized access and for daily data backup. Details result from the agreement on commissioned data processing in Annex 1.
18.4 Upon termination of the contract of use, Nelly shall, at the discretion of the Practice, delete all personal data or return it to the Practice and irrevocably delete the existing copies of the data.
19. Final provisions
19.1 The provisions of the contract of use shall replace all oral or written agreements between the parties. Amendments or supplements to the license agreement - including this written form clause - and its annexes must be made in writing to be effective.
19.2 The contract of use shall be governed in application and interpretation exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 is excluded.
19.3 To the extent permitted by law, Berlin is agreed as the exclusive place of jurisdiction for all claims arising from and in connection with the User Agreement.
Below you will find our previous terms of use:
The following terms of use for Nelly Solutions apply to contracts entered into on or after 10/18/2023. In the bottom section of this page are those general terms of use for contracts entered into before 10/18/2023.
(hereafter "Terms of Use")
The following terms of use for Nelly Solutions apply to contracts entered into on or after 10/18/2023. In the bottom section of this page are those general terms of use for contracts entered into before 10/18/2023.
1. Scope
1.1 These are the terms of use of Nelly Solutions GmbH, (hereinafter "Nelly"). They govern the business relationship between Nelly and medical practices (hereinafter "practices") that wish to use the Nelly Solutions software (hereinafter "platform") and that conclude a corresponding user agreement with Nelly (hereinafter "user agreement").
1.2 Deviating, conflicting or supplementary General Terms and Conditions of Practices shall only become part of the contract if Nelly has expressly agreed to their validity in text form. This requirement of consent also applies if Nelly begins with the performance of services in knowledge of the general terms and conditions of a practice.
2. Subject matter of the contract
2.1 Nelly offers the Platform as a cloud-based software-as-a-service solution for practices. Via the platform, practices can
2.2 Nelly does not provide any documents, data or other content to the practices themselves, but offers a software solution for organizing and editing practice-owned content that can be uploaded to the platform by employees of the practice (hereinafter "Users") (hereinafter "Practice Content")
2.3 Nelly pays particular attention to the high need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection regulations and on the basis of the agreement concluded with the practice on commissioned data processing. Annex 2 contains further specifications for the protection of personal data that must be observed by the practice
3. Conclusion of contract
3.1 Nelly shall submit an offer to the practice regarding the use of the platform (hereinafter "Offer"). The offer defines in particular the term of the contract and the remuneration to be paid by the practice.
3.2 The fee-based contract of use between Nelly and the practice comes into effect when the offer signed by the practice is received by Nelly. Nelly shall thereupon confirm the conclusion of the contract to the practice in writing or by e-mail.
4. Functions of the platform
4.1 Nelly allows the practice to access the modules selected in the offer.
4.2 Unless otherwise agreed by the Parties in the User Agreement, the aforementioned modules shall include the following functions:
(a) Medical History Module:
(b) Variable Documents Module:
(c) Payment processing module, on behalf of the practice:
(d) Invoice Dispatch Module:
4.3 In all modules, Users can upload or create their own practice content on the platform and complete it based on transmitted and/or Nelly-collected data and signatures of the patients in accordance with Sections 6, 7 or 8. Users can then manage and archive the documents via the platform.
4.4 Further services are not owed by Nelly. In particular, Nelly is not obligated to check whether the intended use of the Practice Content for the Practice's own purposes is lawful.
4.5 Due to the performance of necessary maintenance work and improvements, the platform or individual functions may not be available for a short period of time. In this case, Nelly shall take into account the legitimate interests of the practice, in particular by providing advance information in a timely manner. The claim to use the platform exists only according to the current state of the art and the availability mentioned in clause 10.
5. Access to the platform
5.1 The platform is accessed via an Internet browser. The practice itself must ensure a sufficient Internet connection. The practice is responsible for complying with the system requirements necessary for using the platform, in particular with regard to an up-to-date operating system and browser.
5.2 The number of users authorized to access the platform within the practice is specified in the offer. The Practice may only grant access to the Platform to persons who are employed by the Practice, including temporary staff.
5.3 If the Practice wishes to grant access to the Platform to persons outside its organization (hereinafter "External Users"), it must first obtain Nelly's express consent in text form. Consent for External Users named in the offer is deemed to have been granted. External Users may use the functions of the Platform in the same way as internal users. They are considered vicarious agents of the practice within the meaning of § 278 BGB. The Practice shall indemnify Nelly against all claims asserted by third parties against Nelly due to breaches of contractual or statutory obligations in connection with the performance of this User Contract, insofar as External Users are responsible for these breaches.
5.4 Nelly may temporarily block the Practice's access to the Platform if there are concrete indications that a Practice is in breach of statutory provisions or the obligations arising from this contract or is in default with the payment of remuneration. When deciding whether to block access, Nelly will take into account the legitimate interests of the practice, in particular whether there are indications that the practice is not responsible for the violation. Nelly will lift the block as soon as the breach or default of payment has ended.
6. practice contents and data
6.1 Users can upload practice content (including, in particular, practice documents, practice data and patient data) to the Platform and use and edit it on the Platform.
6.2 The Practice guarantees that no third-party rights conflict with the execution of the contract with regard to all contributions uploaded to the Platform by its Users (in particular practice content and other data).
6.3 The Practice shall indemnify Nelly against all third-party claims resulting from the contractual use of practice content or other data originating from its sphere. In this respect, the Practice shall also bear the costs of any necessary legal defense of Nelly.
7. Digital signatures and patient data
7.1 The Practice has the option via a function of the Platform to obtain signatures of its patients on certain documents as digital signatures. In this case, Nelly will contact the respective patient directly on behalf of the practice. Contact is made via the patient's contact details provided by the practice or by the patient themselves. The Practice guarantees that the establishment of contact by Nelly and the contractual collection of signatures by Nelly does not infringe any third-party rights. This applies in particular to data protection regulations.
7.2 Nelly guarantees that, if necessary, Nelly can provide the Practice with user data relating to digital signatures obtained by Nelly on the basis of the User Agreement, which can be used to clearly determine which person has created the respective digital signature. If it is not possible to identify the person, Nelly shall compensate the Practice for any damage incurred by the Practice as a result. Exceptions to this are signatures that were created based on telephone numbers that do not originate from the EU or the United States.
8. Tablets
8.1 If agreed in the offer, Nelly shall provide the practice with tablets for the duration of the contract, on which patients of the practice who do not have a smartphone can carry out patient admissions. The practice shall pay the rental fee specified in the offer for this.
8.2 The practice is obliged to return the tablets to Nelly at its own expense within one week of the end of the contract term.
8.3 If the Practice discovers that a Tablet is not working properly, the Practice is obliged to inform Nelly of this in text form. At Nelly's request, the Practice is also obliged to return a Tablet to Nelly at Nelly's expense in such a case.
8.4 In the event of damage to or functional impairment of the Tablet, Nelly will charge the Practice a flat fee of EUR 30, unless the Practice is not responsible for the damage to or functional impairment of the Tablet.
9. Payment processing
9.1 Nelly enables the billing and payment processing of treatments carried out for private patients and self-paying patients. To collect the payment data, Nelly contacts the respective patient directly via the platform on behalf of the practice. Contact is made via the patient's contact details provided by the practice or by the patient themselves.9.2 Invoices are issued in the manner specified in the offer:
(a) manually by the practice via the platform or the practice's practice management system, which is linked to the platform via an interface;
(b) by Nelly on behalf of and on the individual behalf of the Practice; or
(c) by Nelly in the name of and on behalf of the Practice through an interface that automatically transmits billing data to Nelly on a regular basis.
In all cases, Nelly creates the invoices through a platform function and delivers them to the patient on behalf of the practice.
9.3 Nelly uses the payment service provider Adyen N.V. German Branch Jägerstraße 27 10117 Berlin ("Adyen") for payment processing. All services associated with payment processing are carried out on behalf of the Practice. A prerequisite for the execution of payment processing is that the Practice concludes a contract for an account with Adyen, as specified in the offer.
9.4 The patient pays the invoice amount directly to Adyen. For this purpose, the patient can use the payment methods specified in the offer. Adyen forwards the payment amount received, less the Nelly and Adyen fees specified in the Offer, to the Practice. At no time does Nelly have access to the invoice amount paid by the patient.
10. Participation of the practice
10.1 The Practice alone is responsible for the accuracy of the Practice Content and other data transmitted to Nelly and entered into the Platform. This also applies in particular to all data that the Practice transmits to Nelly for invoicing purposes.
10.2 If the Practice Content or other data is incorrect, the Practice shall inform Nelly of this immediately.
10.3 The Practice shall also inform Nelly immediately of any defects and malfunctions of the Platform and explain the circumstances in more detail. Nelly will then remedy defects within a reasonable period of time. Nelly is entitled to remedy defects by means of a workaround solution if the cause of the defect itself can only be remedied with disproportionate effort and the usability of the Platform is not significantly impaired.
11. Availability
11.1 Nelly shall provide the services specified in the offer during the agreed operating hours. Unless expressly agreed otherwise in the offer, the operating hours are 8:00 to 18:00 CET or CEST on all calendar days with the exception of Saturdays, Sundays, national public holidays and with the exception of December 24 and 31 of each year.
11.2 Nelly guarantees a minimum technical availability of the Platform of 95% during the operating hours. The availability, expressed as a percentage, is calculated as follows:
Total number of operating time minutes in a calendar month minus the total number of downtime minutes during operating time in the same calendar month divided by the total number of operating time minutes in the same calendar month.
11.3 Service interruptions shall be remedied by Nelly within one week at the latest.
12. Contract duration
12.1 The contract of use has the term specified in the offer. The contract is automatically extended by a further six months 30 days before expiry if the contract has not previously been terminated in text form by one of the parties. The contract can be terminated by either party at any time during the first 30 days after the agreed onboarding date.
12.2 The right of both parties to terminate the contract without notice for good cause remains unaffected. Good cause for termination by Nelly exists in particular if unauthorized third parties gain access to the Platform and the Practice or its Users are responsible for this. There is also good cause for termination by Nelly if the Practice does not comply with the requirements set out in Annex 2.
12.3 Terminations must always be made in writing.
13. Remuneration
13.1 The remuneration to be paid by the Practice is specified in the offer.
13.2 All remuneration specified in the offer or in these Terms of Use shall be subject to statutory VAT.
13.3 Unless expressly agreed otherwise in the offer, the remuneration shall be due for payment within thirty days of invoicing by Nelly.
13.4 Nelly's claim to the remuneration shall arise upon conclusion of this contract of use and shall be independent of whether the Practice actually uses or utilizes the agreed services.
14. Rights of use
14.1 Nelly grants the Practice the non-exclusive, non-transferable and non-sublicensable right to use the Platform during the term of the User Agreement for the purpose provided for in the User Agreement and with the number of Users specified in the Offer.
14.2 The Practice grants Nelly the free, non-exclusive, non-sublicensable and non-transferable rights of use to all Practice Content required for the intended use of the Platform (in particular for the provision of the functions specified in the Offer), in particular, to the extent necessary, the reproduction right, the editing right, the right to keep, transmit and reproduce online as well as the database and archiving right.
14.3 Nelly reserves the right to aggregate non-personal data of the practice and its users and to use it in this form for the purpose of the needs-based design, further development and optimization of the platform and the provision of the service owed under the contract.14.4 The patient information forms provided in the "Patient Information" module are protected by copyright. In addition, rights to the patient education forms provided are protected for types of use unknown at the time of conclusion of the contract. Any duplication, modification or processing (including excerpts) by mechanical, digital or other means is prohibited. Furthermore, the publication and distribution in digital or analog form on image, data and sound carriers of all kinds and the reproduction and distribution of these are also prohibited. The extraction of data from the platform using technical aids or the storage of content in database systems is not permitted.
15. Notes on the use of the contents of the "patient education" module
15.1 Nelly offers the practice patient information forms for doctors in the "Patient information" module in the form of computerized solutions (software). These merely serve to support the individual patient information discussion to be conducted in each case by the person obliged to provide information and to fulfill the legal requirements, in particular § 630e BGB, and cannot replace it.
15.2 Nelly undertakes to review the patient information forms provided or have them reviewed once a year for their technical and content-related accuracy and to provide the Contractual Partner with new or updated versions of the patient information forms, if required by the review.
15.3 The responsibility for complete and accurate patient information that complies with the statutory requirements, in particular Section 630e BGB, shall remain exclusively with the statutory dutyholder, even if the patient information forms are used. There is no complete or partial transfer of the corresponding obligations to Nelly. The practice and the person obliged to provide information are advised that the legal content and scope of the duty to provide information are subject to constant change, in particular due to the legal and professional requirements of the duty to provide information, and new professional findings that may require extended information (e.g. about new or newly recognized treatment risks and new treatment methods).
15.4 The frequency information used in the patient information forms, such as "frequent", "rare", etc. for the complications/risks mentioned therein, only reflect a general assessment of the authors of the patient information forms at the time they were created, which relate to a medical procedure performed in accordance with the rules of good practice. Among other things, they do not correspond to the statistical information on side effects of medicines in package inserts. In the case of frequency information, the doctor must always take into account the individual characteristics of the patient during the informed consent discussion.
15.5 Nelly's patient information forms are intended for exclusive use in the Federal Republic of Germany.
15.6 The right to use the patient information forms provided by Nelly expires after the period of use indicated on them, but at the latest upon expiry of the contract between Nelly and the Practice regarding their use. The Practice undertakes to delete or destroy all physical or digital copies of the sample patient information forms in its possession after the expiry of the rights of use.
16. Limitation of liability
16.1 Insofar as Nelly provides the practice with access to websites, APIs, databases or other infrastructures of third parties, Nelly shall neither be responsible for their availability nor for contents obtained therefrom (in particular content or quality of data). Nelly's liability for damages to the practice resulting therefrom is therefore excluded to the extent permitted by law.
16.2 Nelly shall be liable for damages insofar as these were caused intentionally or by gross negligence on the part of Nelly or result from Nelly's breach of obligations, the fulfillment of which is essential for the proper performance of this contract and on the compliance with which the practice may rely, so-called material contractual obligations. Except in the case of intent or gross negligence, Nelly's liability for material contractual obligations shall be limited to the amount of damages typically foreseeable at the time of the conclusion of the contract.
16.3 Apart from that, Nelly's liability is excluded, irrespective of its legal basis, unless Nelly is compulsorily liable by law, in particular due to injury to life, body or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or according to the Product Liability Act. Guarantees by Nelly are in principle only made in writing and are designated as such.
16.4 The limitations of liability of the preceding paragraphs shall also apply to claims against legal representatives, executives, employees and agents as well as other vicarious agents of Nelly.
17. Secrecy
17.1 The parties undertake to treat as confidential all confidential information of the other party, for example of a technical, commercial or organizational nature, which becomes known to them during the performance of the contract of use, and to use it only for contractually agreed purposes. The confidentiality obligation shall not apply to persons who are authorized to know and are legally or contractually obliged to maintain confidentiality or if the other party has consented to disclosure.
17.2 Confidential information within the meaning of this provision is practice content, documents, details, data and information that is designated as confidential or is to be regarded as confidential by its nature. The term Confidential Information does not include information that (i) is or becomes in the public domain or generally available (except as a result of a breach of this Agreement by the receiving party or one of its representatives); (ii) was already lawfully and without obligation of confidentiality in the possession of the receiving party before it received it from the disclosing party; or (iii) was received from a third party who is authorized to disclose such information without restriction.
17.3 If a party is obliged to make confidential information of the other party available to a public body in the aforementioned sense, it shall be entitled to do so; the other party shall be informed immediately and, if possible, before the information is released to the public body.
17.4 The rights and obligations of this Clause 15 shall not be affected by the termination of this Agreement.
18. Data protection
18.1 Nelly knows and respects the special need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection provisions. The agreement on commissioned data processing in Annex 1 applies to the protection of personal data.
18.2 The practice is responsible for obtaining the necessary declarations of consent from the users of the platform and their patients for the processing of personal data via the platform. In addition, the practice is obligated to comply with the specifications from Appendix 2.
18.3 Nelly shall take technical and organizational measures to protect the data against unauthorized access and for daily data backup. Details result from the agreement on commissioned data processing in Annex 1.
18.4 Upon termination of the contract of use, Nelly shall, at the discretion of the Practice, delete all personal data or return it to the Practice and irrevocably delete the existing copies of the data.
19. Final provisions
19.1 The provisions of the contract of use shall replace all oral or written agreements between the parties. Amendments or supplements to the license agreement - including this written form clause - and its annexes must be made in writing to be effective.
19.2 The contract of use shall be governed in application and interpretation exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 is excluded.
19.3 To the extent permitted by law, Berlin is agreed as the exclusive place of jurisdiction for all claims arising from and in connection with the User Agreement.
The following terms of use for Nelly Solutions apply to contracts entered into after 08/09/2023. In the bottom section of this page you will find those general terms of use for contracts concluded before 08.09.2023.
(hereafter"Terms of Use")
1. scope
1.1 These are the terms of use of Nelly Solutions GmbH, (hereinafter "Nelly"). They govern the business relationship between Nelly and medical practices (hereinafter "practices") that wish to use the Nelly Solutions software (hereinafter "platform") and that conclude a corresponding user agreement with Nelly (hereinafter "user agreement").
1.2 Deviating, conflicting or supplementary General Terms and Conditions of Practices shall only become part of the contract if Nelly has expressly agreed to their validity in text form. This requirement of consent also applies if Nelly begins with the performance of services in knowledge of the general terms and conditions of a practice.
2. subject matter of the contract
2.1 Nelly offers the Platform as a cloud-based software-as-a-service solution for practices. Via the platform, practices can
2.2 Nelly does not provide any documents, data or other content to the practices themselves, but offers a software solution for organizing and editing practice-owned content that can be uploaded to the platform by employees of the practice (hereinafter "Users") (hereinafter "Practice Content")
2.3 Nelly pays particular attention to the high need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection regulations and on the basis of the agreement concluded with the practice on commissioned data processing. Annex 2 contains further specifications for the protection of personal data that must be observed by the practice
3. conclusion of contract
3.1 Nelly shall submit an offer to the practice regarding the use of the platform (hereinafter "Offer"). The offer defines in particular the term of the contract and the remuneration to be paid by the practice.
3.2 The fee-based contract of use between Nelly and the practice comes into effect when the offer signed by the practice is received by Nelly. Nelly shall thereupon confirm the conclusion of the contract to the practice in writing or by e-mail.
4. functions of the platform
4.1 Nelly allows the practice to access the modules selected in the offer.
4.2 Unless otherwise agreed by the Parties in the User Agreement, the aforementioned modules shall include the following functions:
(a) Medical History Module:
(b) Variable Documents Module:
(c) Payment processing module, on behalf of the practice:
(d) Invoice Dispatch Module:
4.3 In all modules, Users can upload or create their own practice content on the platform and complete it based on transmitted and/or Nelly-collected data and signatures of the patients in accordance with Sections 6, 7 or 8. Users can then manage and archive the documents via the platform.
4.4 Further services are not owed by Nelly. In particular, Nelly is not obligated to check whether the intended use of the Practice Content for the Practice's own purposes is lawful.
4.5 Due to the performance of necessary maintenance work and improvements, the platform or individual functions may not be available for a short period of time. In this case, Nelly shall take into account the legitimate interests of the practice, in particular by providing advance information in a timely manner. The claim to use the platform exists only according to the current state of the art and the availability mentioned in clause 10.
5. access to the platform
5.1 The platform is accessed via Internet browser. The practice itself must ensure a sufficient Internet connection. The practice is responsible for compliance with the system requirements necessary for the use of the platform, in particular with regard to an up-to-date operating system and browser.
5.2 The number of authorized users within the practice is specified in the offer. The practice may only grant access to the platform to persons who are employed by the practice, including temporary staff.
5.3 If the practice wishes to grant persons outside its organization access to the platform (hereinafter "external users"), it must first obtain Nelly's express consent in text form. Consent for External Users named in the Offer shall be deemed granted. External Users may use the functions of the Platform in the same way as practice-internal Users. They shall be deemed vicarious agents of the practice within the meaning of § 278 BGB. The practice will indemnify Nelly against all claims of third parties which these third parties assert against Nelly due to violations of contractual or legal obligations in connection with the execution of this user agreement, provided that external users are responsible for these violations [Comment V14: are such external users ].
5.4 Nelly may temporarily block the practice's access to the platform if there are concrete indications that a practice violates statutory provisions or the obligations under this agreement or is in default of payment of a fee. Nelly will consider the legitimate interests of the practice when deciding on a block, in particular whether there are indications that the practice is not at fault for the violation. Nelly will lift the block as soon as the violation or default has ended.
6. practice contents and data
6.1 Users may upload practice content (including, in particular, practice documents, practice data and patient data) to the platform and use and edit it on the platform.
6.2 The practice warrants that the execution of the contract with respect to all contributions uploaded by its users on the platform (in particular practice content and other data) does not conflict with any third party rights.
6.3 The practice shall indemnify Nelly from all claims of third parties resulting from a contractual use of practice contents or other data originating from its sphere. In this respect, the practice shall also bear the costs of a necessary legal defense of Nelly.
7. digital signatures and patient data
7.1 The practice has the option via a function of the platform to obtain signatures of its patients on certain documents as digital signatures. In this case, Nelly shall enter into direct contact with the respective patient on behalf of the practice. The contact is established via the patient's contact data provided by the practice or by the patient himself. The practice guarantees that the establishment of contact by Nelly and the obtaining of signatures by Nelly in accordance with the contract does not violate any rights of third parties. This applies in particular to data protection requirements.
7.2 Nelly warrants that Nelly can provide the practice, if required, with user data in relation to digital signatures obtained by Nelly on the basis of the user agreement, with the help of which it can be clearly determined which person made the respective digital signature. If it is not possible to determine the person, Nelly shall compensate the practice for the damage incurred by the practice as a result.
8. tablets
8.1 If agreed in the offer, Nelly shall provide the practice with tablets for the term of the contract on which patients of the practice who do not have a smartphone can perform patient admission. For this, the practice shall pay the rental fee specified in the offer.
8.2 The practice is obligated to return the tablets to Nelly at its own expense within one week after the end of the contract term.
8.3 If the practice determines that a tablet is not functioning properly, the practice is obligated to inform Nelly of this in text form. Upon Nelly's request, the practice is also obligated to return a tablet to Nelly at Nelly's expense in such a case.
8.4 In the event of damage or functional impairment of the tablet, Nelly shall charge the practice a flat fee of EUR 30, unless the practice is not responsible for the damage or functional impairment of the tablet.
9. payment processing
9.1 Nelly enables the billing and payment processing of treatments performed for private patients and self-paying patients. For the collection of payment data, Nelly enters into direct contact with the respective patient via the platform on behalf of the practice. The contact is established via the patient's contact data provided by the practice or by the patient himself.
9.2 The invoice shall be issued by choice in the manner specified in the offer:
(a) manually by the practice via the platform or the practice's practice management system, which is linked to the platform via an interface;
(b) by Nelly on behalf of and on the individual behalf of the Practice; or
(c) by Nelly in the name of and on behalf of the Practice through an interface that automatically transmits billing data to Nelly on a regular basis.
In all cases, Nelly creates the invoices through a platform function and delivers them to the patient on behalf of the practice.
9.3 For payment processing, Nelly integrates the payment service provider Stripe Inc., 354 Oyster Point Boulevard, South San Francisco, California, 94080, USA ("Stripe"). All services associated with payment processing are performed on behalf of the Practice. It is a condition of performing payment processing that the Practice enters into a Connected Account Agreement with Stripe, as set forth in the Proposal.
9.4 The Patient shall pay the invoice amount directly to Stripe. The payment methods specified in the Offer are available to the Patient for this purpose. Stripe will forward the payment amount received, less the Nelly and Stripe fees specified in the Offer, to the Practice. Nelly does not have access to the invoice amount paid by the patient at any time.
10. participation of the practice
10.1 The practice alone is responsible for the accuracy of the practice content and other data transmitted to Nelly and fed into the platform. This also applies in particular to all data that the practice transmits to Nelly for invoicing purposes.
10.2 In the event of errors in the practice content or other data, the practice shall inform Nelly thereof without delay.
10.3 Likewise, the practice shall inform Nelly immediately about defects and malfunctions of the platform and explain the detailed circumstances. Nelly will then remedy defects within a reasonable period of time. Nelly is entitled to remedy defects by means of a workaround solution if the cause of the defect itself can only be remedied with disproportionate effort and the usability of the platform is not significantly impaired.
11. availability
11.1 Nelly shall provide the services specified in the offer during the agreed operating hours. Unless expressly agreed otherwise in the offer, the operating hours are 8:00 a.m. to 6:00 p.m. CET or CEST on all calendar days with the exception of Saturdays, Sundays, nationwide public holidays and with the exception of December 24 and 31 of each year.
11.2 Nelly grants a minimum technical availability of the Platform of 95% during the Operating Hours. The availability, expressed as a percentage, is calculated as follows:
Total number of operating time minutes in a calendar month minus the total number of downtime minutes during operating time in the same calendar month divided by the total number of operating time minutes in the same calendar month.
11.3 Service interruptions shall be remedied by Nelly within one week at the latest.
12. contract duration
12.1 The User Agreement shall have the term specified in the offer. The contract shall be automatically extended by a further six months 30 days before expiry if the contract has not previously been terminated in text form by one of the parties. In the first 30 days after the agreed onboarding date, the contract may be terminated by either party at any time.
12.2 The right of both parties to terminate without notice for good cause remains unaffected. Good cause for termination by Nelly exists in particular if unauthorized third parties gain access to the platform and the practice or its users are responsible for this. Good cause for termination by Nelly shall also exist if the practice does not comply with the specifications in Annex 2.
12.3 Terminations must always be made in writing.
13. remuneration
13.1 The remuneration to be paid by the practice is specified in the offer.
13.2 All remunerations stated in the offer or in these Terms of Use shall be exclusive of the statutory value added tax.
13.3 Unless expressly agreed otherwise in the offer, the remuneration shall be due for payment within thirty days after Nelly has issued the invoice.
13.4 Nelly's claim to remuneration shall arise upon conclusion of this User Agreement and shall be independent of whether the practice actually makes use of or uses the agreed services.
14. rights of use
14.1 Nelly grants the Practice the non-exclusive, non-transferable and non-sublicensable right to use the Platform for the duration of the User Agreement for the purpose provided for in the User Agreement and with the number of Users specified in the Offer.
14.2 The practice grants Nelly the free, non-exclusive, non-sublicensable and non-transferable rights of use to all practice content required for the intended use of the platform (in particular for the provision of the functions specified in the offer), in particular, to the extent required, the right of reproduction, the right of editing, the right to online storage, transmission and reproduction as well as the database and archiving right.
14.3 Nelly reserves the right to aggregate non-personal data of the practice and its Users and to use it in this form for the purpose of demand-oriented design, further development and optimization of the platform as well as the provision of the service owed under the contract.
14.4 The patient education forms provided in the "Patient Education" module are protected by copyright. In addition, rights to the patient education forms provided are protected in types of use that were still unknown at the time the contract was concluded. Any reproduction, modification or editing (including excerpts) by mechanical, digital or other means is prohibited. Furthermore, the publication and distribution in digital or analog form on image, data and sound carriers of any kind and to reproduce and distribute them in turn are also prohibited. The reading of data from the platform with technical aids such as or saving the content in database systems is not permitted.
15. notes on the use of the contents of the "patient education" module
15.1 Nelly offers the practice patient education forms for physicians in the "Patient Education" module in the form of EDP-supported solutions (software). These merely serve to support the individual educational discussion to be conducted in each case by the person obliged to provide the information and cannot replace it.
15.2 The responsibility for a complete and accurate patient education therefore remains exclusively with the legal duty to inform, even when using the patient education media. It is clarified that the use of the patient education forms stored in the patient education module does not replace the duty of the duty to inform of the duty to inform and also does not become the subject matter of the contract between Nelly and the practice.
15.3 The practice and the person obliged to provide information are advised that the content and scope of the medical duty to provide information are subject to constant change, in particular due to the legal and professional requirements for the duty to provide information, and new findings that require extended information (e.g. about new or newly identified treatment risks and new treatment methods).
15.4 The frequency data used in the patient information forms, such as "frequently", "rarely", etc., for the complications/risks mentioned therein only reflect a general assessment by the authors of the patient information forms, which refer to a medical intervention performed lege artis. Among other things, they do not correspond to the statistical information on side effects of drugs in package inserts. In the case of frequency information, the physician must always take into account the individual characteristics of the patient in the patient information discussion. Nelly patient information forms are for exclusive use in the Federal Republic of Germany.
16. limitation of liability
16.1 Insofar as Nelly provides the practice with access to websites, APIs, databases or other infrastructures of third parties, Nelly shall neither be responsible for their availability nor for contents obtained therefrom (in particular content or quality of data). Nelly's liability for damages to the practice resulting therefrom is therefore excluded to the extent permitted by law.
16.2 Nelly shall be liable for damages insofar as these were caused intentionally or by gross negligence on the part of Nelly or result from Nelly's breach of obligations, the fulfillment of which is essential for the proper performance of this contract and on the compliance with which the practice may rely, so-called material contractual obligations. Except in the case of intent or gross negligence, Nelly's liability for material contractual obligations shall be limited to the amount of damages typically foreseeable at the time of the conclusion of the contract.
16.3 Apart from that, Nelly's liability is excluded, irrespective of its legal basis, unless Nelly is compulsorily liable by law, in particular due to injury to life, body or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or according to the Product Liability Act. Guarantees by Nelly are in principle only made in writing and are designated as such.
16.4 The limitations of liability of the preceding paragraphs shall also apply to claims against legal representatives, executives, employees and agents as well as other vicarious agents of Nelly.
17.secrecy
17.1 The parties undertake to treat as confidential all confidential information of the other party, for example of a technical, commercial or organizational nature, of which they become aware during the performance of the license agreement and to use it only for contractually agreed purposes. The duty of confidentiality shall not apply to such persons who are authorized to take cognizance and are legally or contractually bound to secrecy or if the other party has consented to the disclosure.
17.2 Confidential information within the meaning of this provision shall be practice content, documents, details, data and information which are designated as confidential or which by their nature are to be regarded as confidential. The term Confidential Information shall not include such information which (i) is or becomes in the public domain or in the public domain (unless due to a breach of this Agreement by the Receiving Party or any of its Representatives); (ii) was already lawfully in the Receiving Party's possession without any obligation of confidentiality before it received it from the Disclosing Party; or (iii) was received from a third party who is entitled to disclose such information without restriction.
17.3 If a party is obliged to make confidential information of the other party available to a public body in the aforementioned sense, it shall be entitled to do so; the other party shall be informed immediately and, if possible, before the information is released to the public body.
17.4 The rights and obligations under this Clause 15 shall not be affected by any termination of this Agreement.
18.data protection
18.1 Nelly knows and respects the special need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection provisions. The agreement on commissioned data processing in Annex 1 applies to the protection of personal data.
18.2 The practice is responsible for obtaining the necessary declarations of consent from the users of the platform and their patients for the processing of personal data via the platform. In addition, the practice is obligated to comply with the specifications from Appendix 2.
18.3 Nelly shall take technical and organizational measures to protect the data against unauthorized access and for daily data backup. Details result from the agreement on commissioned data processing in Annex 1.
18.4 Upon termination of the User Agreement, Nelly shall, at the option of the Practice, delete or surrender to the Practice all Personal Data and irrevocably delete any existing copies of the Data.
19. final provisions
19.1 The provisions of the contract of use shall replace all oral or written agreements between the parties. Amendments or supplements to the license agreement - including this written form clause - and its annexes must be made in writing to be effective.
19.2 The contract of use shall be governed in application and interpretation exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 is excluded.
19.3 To the extent permitted by law, Berlin is agreed as the exclusive place of jurisdiction for all claims arising from and in connection with the User Agreement.
The following terms of use for Nelly Solutions apply to contracts entered into on or after 04/08/2023. In the bottom section of this page you will find those general terms of use for contracts concluded before 04.08.2023.
(hereafter "Terms of Use")
1. scope
2. subject matter of the contract
3. conclusion of contract
4. functions of the platform
5. access to the platform
6. practice contents and data
7. digital signatures and patient data
8. tablets
9. payment processing
In all cases, Nelly creates the invoices through a platform function and delivers them to the patient on behalf of the practice.
10. participation of the practice
11. availability
Total number of operating time minutes in a calendar month minus the total number of downtime minutes during operating time in the same calendar month divided by the total number of operating time minutes in the same calendar month.
12. contract duration
13. compensation
14. rights of use
15. notes on the use of the contents of the "patient education" module
16. limitation of liability
17. secrecy
18. data protection
19. final provisions
The following Terms of Use for Nelly Solutions apply to contracts entered into from 05/24/2023 to 08/03/2023. In the bottom section of this page you can find those general terms of use for contracts concluded before 24.05.2023.
(hereafter "Terms of use").
1 Scope
1.1 These are the terms of use of Nelly Solutions GmbH (hereinafter "Nelly"). They govern the business relationship between Nelly and medical practices (hereinafter "practices") that wish to use the Nelly Solutions software (hereinafter "platform") and that conclude a corresponding user agreement with Nelly (hereinafter "user agreement").
1.2 Deviating, conflicting or supplementary General Terms and Conditions of Practices shall only become part of the contract if Nelly has expressly agreed to their validity in text form. This requirement of consent also applies if Nelly begins with the performance of services in knowledge of the general terms and conditions of a practice.
2 Subject matter of the contract
2.1 Nelly offers the Platform as a cloud-based software-as-a-service solution for practices. Via the platform, practices can
2.2 Nelly does not provide any documents, data or other content to the practices themselves, but offers a software solution for organizing and editing practice-owned content that can be uploaded to the platform by practice employees (hereinafter "Users") (hereinafter "Practice Content").
2.3 Nelly pays particular attention to the high need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection regulations as well as on the basis of the agreement on commissioned data processing concluded with the practice.
3 Conclusion of contract
3.1 Nelly shall submit an offer to the practice regarding the use of the platform (hereinafter "Offer"). The offer defines in particular the term of the contract, the agreed scope of services and the remuneration to be paid by the practice.
3.2 The fee-based contract of use between Nelly and the practice comes into effect when the offer signed by the practice is received by Nelly. Nelly shall thereupon confirm the conclusion of the contract to the practice in writing or by e-mail.
4 Functions of the platform
4.1 Nelly allows the practice to access the modules selected in the offer.
4.2 Unless otherwise agreed by the Parties in the User Agreement, the modules mentioned shall comprise the following functions:
(a) Medical History Module:
(b) Variable Documents Module:
(c) Payment processing module, on behalf of the practice:
(d) Invoice Dispatch Module:
4.3 In all modules, users can upload or create their own practice content on the platform and complete it based on transmitted and/or Nelly-collected data and signatures of patients according to clauses 6, or 7. Users can then manage and archive the documents via the platform.
4.4 Further services are not owed by Nelly. In particular, Nelly is not obligated to check whether the intended use of the Practice Content for the Practice's own purposes is lawful.
4.5 Nelly may update and further develop the platform at any time and adapt it in particular due to a changed legal situation, technical developments or to improve IT security. In doing so, Nelly will adequately consider the legitimate interests of the practice and inform the practice in due time about necessary updates.
4.6 Nelly does not owe a customization to the individual needs or IT environment of the practice, unless the parties have agreed otherwise in the offer.
4.7 Due to the performance of necessary maintenance work and improvements, the platform or individual functions may not be available for a short period of time. In this case, Nelly shall take into account the legitimate interests of the practice, in particular by providing advance information in a timely manner. The claim to use the platform exists only according to the current state of the art and the availability mentioned in clause 11.
5 Access to the platform
5.1 The platform is accessed via Internet browser. The practice itself must ensure a sufficient Internet connection. The practice is responsible for compliance with the system requirements necessary for the use of the platform, in particular with regard to an up-to-date operating system and browser.
5.2 The number of authorized users within the practice is specified in the offer. The practice may only grant access to the platform to persons who are employed by the practice, including temporary staff.
5.3 If the practice wishes to grant access to the platform to persons outside its organization (hereinafter "external users"), it must first obtain Nelly's express consent in text form. Consent for External Users named in the Offer shall be deemed granted. External Users may use the functions of the Platform in the same way as practice-internal Users. They shall be deemed vicarious agents of the practice within the meaning of § 278 BGB. The practice will indemnify Nelly against all claims of third parties which these third parties assert against Nelly due to violations of contractual or legal obligations in connection with the implementation of this user agreement, provided that external users are responsible for these violations.
5.4 Nelly may temporarily block the practice's access to the platform if there are concrete indications that a practice violates statutory provisions or the obligations under this agreement or is in default with the payment of a fee. Nelly will consider the legitimate interests of the practice when deciding on a block, in particular whether there are indications that the practice is not at fault for the violation. Nelly will lift the block as soon as the violation or default has ended.
6 Practical contents and data
6.1 Users may upload practice content (including, in particular, practice documents, practice data and patient data) to the platform and use and edit it on the platform.
6.2 The practice warrants that the execution of the contract with respect to all contributions uploaded by its users on the platform (in particular practice content and other data) does not conflict with any third party rights.
6.3 The practice shall indemnify Nelly from all claims of third parties resulting from a contractual use of practice contents or other data by Nelly which originate from the sphere of the practice. In this respect, the practice shall also bear the costs of a necessary legal defense of Nelly.
7 Digital signatures and patient data
7.1 The practice has the option via a function of the platform to obtain signatures of its patients on certain documents as digital signatures. In this case, Nelly shall enter into direct contact with the respective patient on behalf of the practice. The contact is established via the patient's contact data provided by the practice or by the patient himself. The practice guarantees that the establishment of contact by Nelly and the obtaining of signatures and declarations of consent by Nelly in accordance with the contract do not violate any rights of third parties. This applies in particular to data protection requirements.
7.2 Nelly warrants that Nelly can, if required, provide the practice with user data in relation to each digital signature obtained by Nelly on the basis of the user agreement, with the help of which it can be clearly determined which person made the respective digital signature. If it is not possible to determine the person, Nelly shall compensate the practice for the damage incurred by the practice as a result.
8 Tablets
8.1 If agreed in the Offer, Nelly shall provide the Practice with tablets for the term of the Agreement on which the Practice can enable its patients to fill out and sign documents of the Practice. For this, the practice shall pay the rental fee specified in the offer.
8.2 The practice is obliged to return the tablets to Nelly at its own expense within one week after the end of the contract period.
8.3 If the practice determines that a tablet is not functioning properly, the practice is obligated to inform Nelly of this in text form. Upon Nelly's request, the practice is also obligated to return a tablet to Nelly at Nelly's expense in such a case.
8.4 In the event of damage to the tablet, Nelly shall charge the practice a flat fee of EUR 30, unless the practice is not responsible for the damage or functional impairment of the tablet.
9 Payment processing
9.1 Nelly enables the billing and payment processing of treatments performed for private patients and self-paying patients. For the collection of payment data, Nelly enters into direct contact with the respective patient via the platform on behalf of the practice. The contact is established via the patient's contact data provided by the practice or by the patient himself.
9.2 The invoice shall be issued in the manner specified in the offer,
In all cases, Nelly creates the invoices through a platform function and delivers them to the patient on behalf of the practice.
9.3 For payment processing, Nelly integrates the payment service provider Stripe Inc., 354 Oyster Point Boulevard, South San Francisco, California, 94080, USA ("Stripe"). All services associated with payment processing are performed on behalf of the Practice. It is a condition of payment processing that the Practice enters into a Connected Account Agreement with Stripe, as set forth in the Proposal.
9.4 The Patient shall pay the invoice amount directly to Stripe. The payment methods specified in the Offer are available to the Patient for this purpose. Stripe will forward the payment amount received, less the Nelly and Stripe fees specified in the Offer, to the Practice. Nelly does not have access to the invoice amount paid by the patient at any time.
10 Participation of the practice
10.1 The practice alone is responsible for the accuracy of the practice content and other data transmitted to Nelly and fed into the platform. This also applies in particular to all data that the practice transmits to Nelly for billing purposes.
10.2 In the event of errors in the practice content or other data, the practice shall inform Nelly thereof without delay.
10.3 Likewise, the practice shall inform Nelly immediately about defects and malfunctions of the platform and explain the detailed circumstances. Nelly will then remedy defects within a reasonable period of time. Nelly is entitled to remedy defects by a work-around solution if the cause of the defect itself can only be remedied with disproportionate effort and the usability of the platform is not significantly impaired.
11 Availability
11.1 Nelly shall provide the services specified in the offer during the agreed operating hours. Unless expressly agreed otherwise in the offer, the platform is available between 8:00 a.m. and 6:00 p.m. CET or CEST on all calendar days with the exception of Saturdays, Sundays, nationwide public holidays and with the exception of December 24 and 31 of each year (operating hours).
11.2 Nelly grants a minimum technical availability of the Platform of 99% during the Operating Hours. The availability, expressed as a percentage, is calculated as follows:
Total number of operating time minutes in a calendar month minus the total number of downtime minutes during operating time in the same calendar month divided by the total number of operating time minutes in the same calendar month.
11.3 Service interruptions shall be remedied by Nelly within one week at the latest.
11.4 The platform is available around the clock.
12 Contract duration
12.1 The User Agreement shall have the term agreed between the Parties in the Offer. Within this contract term, either party may terminate the contract by giving three (3) months' notice to the end of the month. If the User Agreement is not terminated by either party at least three (3) months prior to the expiration of its term, it shall be automatically extended by the originally agreed term, unless otherwise agreed in the offer.
12.2 The right of both parties to terminate without notice for good cause remains unaffected. Good cause for termination by Nelly exists in particular if unauthorized third parties gain access to the platform and the practice or its users are responsible for this.
12.3 Notices of termination must always be in text form.
13 Compensation
13.1 The remuneration to be paid by the practice is specified in the offer.
13.2 All remunerations stated in the offer or in these Terms of Use shall be exclusive of the statutory value added tax.
13.3 Unless otherwise expressly agreed in the offer, the remuneration is due for payment within fourteen days after Nelly has issued the invoice. Unless otherwise agreed in the offer, Nelly shall invoice the services on a monthly basis.
13.4 Nelly's claim to remuneration shall arise upon conclusion of this User Agreement and shall be independent of whether the practice actually makes use of or uses the agreed services.
14 Rights of use
14.1 Nelly grants the Practice the non-exclusive, non-transferable and non-sublicensable right to use the Platform for the duration of the User Agreement for the purpose provided for in the User Agreement and with the number of Users specified in the Offer.
14.2 The practice grants Nelly the free, non-exclusive, non-sublicensable and non-transferable rights of use to all practice content required for the intended use of the platform (in particular for the provision of the functions specified in the offer), in particular, to the extent required, the right of reproduction, the right of editing, the right to online storage, transmission and reproduction as well as the database and archiving right.
14.3 Nelly reserves the right to aggregate non-personal data of the practice and its Users and to use it in this form for the purpose of demand-oriented design, further development and optimization of the platform as well as the provision of the service owed under the contract.
15 Limitation of liability
15.1 Insofar as Nelly provides the practice with access to websites, APIs, databases or other infra structures of third parties, Nelly shall neither be responsible for their availability nor for contents obtained therefrom (in particular content or quality of data). Nelly shall therefore not be liable for any resulting damages to the practice, to the extent permitted by law.
15.2 Nelly shall be liable for damages insofar as these were caused intentionally or by gross negligence on the part of Nelly or result from Nelly's breach of obligations, the fulfillment of which is essential for the proper performance of this contract and on the compliance with which the practice may rely, so-called material contractual obligations. Except in the case of intent or gross negligence, Nelly's liability for material contractual obligations shall be limited to the amount of damages typically foreseeable at the time of the conclusion of the contract.
15.3 In all other respects, liability of Nelly is excluded, regardless of its legal basis, unless Nelly is compulsorily liable by law, in particular due to injury to life, body or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by Nelly are in principle only made in writing and are designated as such.
15.4 Nelly's strict warranty liability for initial defects pursuant to § 536a para. 1 1st Alt. BGB (German Civil Code) is excluded - unless it is a matter of injury to life, body, health or material contractual obligations. Otherwise, a claim for damages of the practices for initial defects exists only if Nelly is responsible for their existence or non-elimination.
15.5 The limitations of liability of the preceding paragraphs shall also apply to claims against legal representatives, executives, employees and agents as well as other vicarious agents of Nelly.
16 Secrecy
16.1 The parties undertake to treat as confidential all confidential information of the other party, for example of a technical, commercial or organizational nature, of which they become aware during the performance of the license agreement and to use it only for contractually agreed purposes. The duty of confidentiality shall not apply to such persons who are authorized to take cognizance and are legally or contractually bound to secrecy or if the other party has consented to the disclosure.
16.2 Confidential information within the meaning of this provision shall be practice content, documents, details, data and information which are designated as confidential or which by their nature are to be regarded as confidential. The term Confidential Information shall not include such information that (i) is or becomes in the public domain or in the public domain (unless due to a breach of this Agreement by the Receiving Party or any of its Representatives); (ii) was already lawfully in the Receiving Party's possession without any obligation of confidentiality prior to its receipt from the Disclosing Party; or (iii) was received from a third party that is entitled to disclose such information without restriction.
16.3 If a party is obligated to make confidential information of the other party available to a public body in the aforementioned sense or if an exception pursuant to Section 5 of the German Business Secrets Act applies, this shall not constitute a breach of this confidentiality obligation; however, the other party shall be informed immediately and, if possible, before the information is released to the public body.
16.4 The rights and obligations under this Clause 16 shall not be affected by any termination of this Agreement.
17 Data protection
17.1 Nelly knows and respects the special need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection provisions. The agreement on commissioned data processing in Annex 1 applies to the protection of personal data.
17.2 The Practice is responsible for obtaining the necessary declarations of consent from the Users of the Platform and their patients for the processing of personal data via the Platform.
17.3 Nelly shall take technical and organizational measures to protect the data against unauthorized access and for daily data backup. Details result from the agreement on commissioned data processing in Annex 1.
18 Final provisions
18.1 The provisions of the contract of use shall replace all oral or written agreements between the parties. Amendments or supplements to the license agreement - including this written form clause - and its annexes must be made in writing to be effective.
18.2 The User Agreement shall be governed exclusively by and construed in accordance with the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.
18.3 To the extent permitted by law, Berlin is agreed as the exclusive place of jurisdiction for all claims arising from the usage agreement.
Status: December 2022
(hereafter "Terms of Use")
1. scope
1.1 These are the terms of use of Nelly Solutions GmbH, (hereinafter "Nelly"). They govern the business relationship between Nelly and medical practices (hereinafter "practices") that wish to use the Nelly Solutions software (hereinafter "platform") and that conclude a corresponding user agreement with Nelly (hereinafter "user agreement").
1.2 Deviating, conflicting or supplementary General Terms and Conditions of Practices shall only become part of the contract if Nelly has expressly agreed to their validity in text form. This requirement of consent also applies if Nelly begins with the performance of services in knowledge of the general terms and conditions of a practice.
2. subject matter of the contract
2.1 Nelly offers the Platform as a cloud-based software-as-a-service solution for practices. Via the platform, practices can
(a) Collect and manage patient data for digital patient recording (hereinafter "Medical History Module");
(b) Create standardized, dynamic documents and enter into individual contracts with patients (hereinafter "Variable Documents Module");
(c) collect and manage patient payment data, bill treatments, and process payments (hereinafter "Payment Processing Module").
2.2 Nelly provides, but offers a software solution for organizing and editing practice-owned content that can be uploaded to the platform by employees of the practice (hereinafter "Users") (hereinafter "Practice Content").
2.3 Nelly pays particular attention to the high need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection regulations as well as on the basis of the agreement on commissioned data processing concluded with the practice. Annex 2 contains further requirements for the protection of personal data that must be observed by the practice.
3. conclusion of contract
3.1 Nelly shall submit an offer to the practice regarding the use of the platform (hereinafter "Offer"). The offer defines in particular the term of the contract and the remuneration to be paid by the practice.
3.2 The fee-based contract of use between Nelly and the practice comes into effect when the offer signed by the practice is received by Nelly. Nelly shall thereupon confirm the conclusion of the contract to the practice in writing or by e-mail.
4. functions of the platform
4.1 Nelly allows the practice to access the modules selected in the offer.
4.2 Unless otherwise agreed by the Parties in the User Agreement, the aforementioned modules shall include the following functions:
(a) Medical History Module:
(b) Variable Documents Module:
(c) Payment processing module, on behalf of the practice:
4.3 In all modules, Users can upload or create their own practice content on the platform and complete it based on transmitted and/or Nelly-collected data and signatures of the patients in accordance with Sections 6, 7 or 8. Users can then manage and archive the documents via the platform.
4.4 Further services are not owed by Nelly. In particular, Nelly is not obligated to check whether the intended use of the Practice Content for the Practice's own purposes is lawful.
4.5 Due to the performance of necessary maintenance work and improvements, the platform or individual functions may not be available for a short period of time. In this case, Nelly shall take into account the legitimate interests of the practice, in particular by providing advance information in a timely manner. The claim to use the platform exists only according to the current state of the art and the availability mentioned in clause 11.
5. access to the platform
5.1 The platform is accessed via Internet browser. The practice itself must ensure a sufficient Internet connection. The practice is responsible for compliance with the system requirements necessary for the use of the platform, in particular with regard to an up-to-date operating system and browser.
5.2 The number of authorized users within the practice is specified in the offer. The practice may only grant access to the platform to persons who are employed by the practice, including temporary staff.
5.3 If the practice wishes to grant access to the platform to persons outside its organization (hereinafter "external users"), it must first obtain Nelly's express consent in text form. Consent for External Users named in the Offer shall be deemed granted. External Users may use the functions of the Platform in the same way as practice-internal Users. They shall be deemed vicarious agents of the practice within the meaning of § 278 BGB. The practice will indemnify Nelly against all claims of third parties which these third parties assert against Nelly due to violations of contractual or legal obligations in connection with the implementation of this user agreement, provided that external users are responsible for these violations.
5.4 Nelly may temporarily block the practice's access to the platform if there are concrete indications that a practice violates statutory provisions or the obligations under this agreement or is in default with the payment of a fee. Nelly will consider the legitimate interests of the practice when deciding on a block, in particular whether there are indications that the practice is not at fault for the violation. Nelly will lift the block as soon as the violation or default has ended.
6. practice contents and data
6.1 Users may upload practice content (including, in particular, practice documents, practice data and patient data) to the platform and use and edit it on the platform.
6.2 The practice warrants that the execution of the contract with respect to all contributions uploaded by its users on the platform (in particular practice content and other data) does not conflict with any third party rights.
6.3 The practice shall indemnify Nelly from all claims of third parties resulting from a contractual use of practice contents or other data originating from its sphere. In this respect, the practice shall also bear the costs of a necessary legal defense of Nelly.
7. digital signatures and patient data
7.1 The practice has the option via a function of the platform to obtain signatures of its patients on certain documents as digital signatures. In this case, Nelly shall enter into direct contact with the respective patient on behalf of the practice. The contact is established via the patient's contact data provided by the practice or by the patient himself. The practice guarantees that the establishment of contact by Nelly and the obtaining of signatures by Nelly in accordance with the contract does not violate any rights of third parties. This applies in particular to data protection requirements.
7.2 Nelly warrants that Nelly can, if required, provide the practice with user data in relation to each digital signature obtained by Nelly on the basis of the user agreement, with the help of which it can be clearly determined which person made the respective digital signature. If it is not possible to determine the person, Nelly shall compensate the practice for the damage incurred by the practice as a result.
8. tablets
8.1 If agreed in the Offer, Nelly shall provide the Practice with tablets for the term of the Agreement on which the Practice can enable its patients to fill out and sign documents of the Practice. For this, the practice shall pay the rental fee specified in the offer.
8.2 The practice is obliged to return the tablets to Nelly at its own expense within one week after the end of the contract period.
8.3 If the practice determines that a tablet is not functioning properly, the practice is obligated to inform Nelly of this in text form. Upon Nelly's request, the practice is also obliged to return a tablet to Nelly at Nelly's expense in such a case.
8.4 In the event of damage to or functional impairment of the tablet, Nelly shall charge the Practice a flat fee of EUR 30, unless the Practice is not responsible for the damage or functional impairment of the tablet.
9. payment processing
9.1 Nelly enables the billing and payment processing of treatments performed for private patients and self-paying patients. For the collection of payment data, Nelly enters into direct contact with the respective patient via the platform on behalf of the practice. The contact is established via the patient's contact data provided by the practice or by the patient himself.
9.2 The invoice shall be issued in the manner specified in the offer by choice.
(a) manually by the practice via the platform or the practice's practice management system, which is linked to the platform via an interface;
(b) by Nelly on behalf of and on the individual behalf of the Practice; or
(c) by Nelly in the name of and on behalf of the Practice through an interface that automatically transmits billing data to Nelly on a regular basis.
In all cases, Nelly creates the invoices through a platform function and delivers them to the patient on behalf of the practice.
9.3 For payment processing, Nelly integrates the payment service provider Stripe Inc., 354 Oyster Point Boulevard, South San Francisco, California, 94080, USA ("Stripe"). All services associated with payment processing are performed on behalf of the Practice. It is a condition of payment processing that the Practice enters into a Connected Account Agreement with Stripe, as set forth in the Proposal.
9.4 The Patient shall pay the invoice amount directly to Stripe. The payment methods specified in the Offer are available to the Patient for this purpose. Stripe will forward the payment amount received, less the Nelly and Stripe fees specified in the Offer, to the Practice. Nelly does not have access to the invoice amount paid by the patient at any time.
10. participation of the practice
10.1 The practice alone is responsible for the accuracy of the practice content and other data transmitted to Nelly and fed into the platform. This also applies in particular to all data that the practice transmits to Nelly for billing purposes.
10.2 In the event of errors in the practice content or other data, the practice shall inform Nelly thereof without delay.
10.3 Likewise, the practice shall inform Nelly immediately about defects and malfunctions of the platform and explain the detailed circumstances. Nelly will then remedy defects within a reasonable period of time. Nelly is entitled to remedy defects by means of a workaround solution if the cause of the defect itself can only be remedied with disproportionate effort and the usability of the platform is not significantly impaired.
11. availability
11.1 Nelly shall provide the services specified in the offer during the agreed operating hours. Unless expressly agreed otherwise in the offer, the platform is available between 8:00 a.m. and 6:00 p.m. CET or CEST on all calendar days with the exception of Saturdays, Sundays, nationwide public holidays and with the exception of December 24 and 31 of each year (operating hours).
11.2 Nelly grants a minimum technical availability of the Platform of 99% during the Operating Hours. The availability, expressed as a percentage, is calculated as follows:
Total number of operating time minutes in a calendar month minus the total number of downtime minutes during operating time in the same calendar month divided by the total number of operating time minutes in the same calendar month.
11.3 Service interruptions shall be remedied by Nelly within one week at the latest.
11.4 The platform is available around the clock.
12. contract duration
12.1 The User Agreement shall have the term specified in the offer. The contract shall be automatically extended by a further six months 30 days before expiry if the contract has not previously been terminated in writing by one of the parties. In the first 30 days after the agreed onboarding date, the contract can be terminated by either party at any time. This applies insofar as no other agreement has been made between the parties.
12.2 The right of both parties to terminate without notice for good cause remains unaffected. Good cause for termination by Nelly exists in particular if unauthorized third parties gain access to the platform and the practice or its users are responsible for this. Good cause for termination by Nelly shall also exist if the practice does not comply with the specifications in Annex 2.
12.3 Terminations must always be made in writing.
13. compensation
13.1 The remuneration to be paid by the practice is specified in the offer.
13.2 All remunerations stated in the offer or in these Terms of Use shall be exclusive of the statutory value added tax.
13.3 Unless otherwise expressly agreed in the offer, the remuneration shall be due for payment within fourteen days after Nelly has issued the invoice.
13.4 Nelly's claim to remuneration shall arise upon conclusion of this User Agreement and shall be independent of whether the practice actually makes use of or uses the agreed services.
14. rights of use
14.1 Nelly grants the Practice the non-exclusive, non-transferable and non-sublicensable right to use the Platform for the duration of the User Agreement for the purpose provided for in the User Agreement and with the number of Users specified in the Offer.
14.2 The practice grants Nelly the free, non-exclusive, non-sublicensable and non-transferable rights of use to all practice content required for the intended use of the platform (in particular for the provision of the functions specified in the offer), in particular, to the extent required, the right of reproduction, the right of editing, the right to online storage, transmission and reproduction as well as the database and archiving right.
14.3 Nelly reserves the right to aggregate non-personal data of the practice and its Users and to use it in this form for the purpose of demand-oriented design, further development and optimization of the platform as well as the provision of the service owed under the contract.
15. limitation of liability
15.1 Insofar as Nelly provides the Practice with access to websites, APIs, databases or other infrastructures of third parties, Nelly shall neither be responsible for their availability nor for contents obtained therefrom (in particular content or quality of data). Nelly's liability for damages to the practice resulting therefrom is therefore excluded to the extent permitted by law.
15.2 Nelly shall be liable for damages insofar as these were caused intentionally or by gross negligence on the part of Nelly or result from Nelly's breach of obligations, the fulfillment of which is essential for the proper performance of this contract and on the compliance with which the practice may rely, so-called material contractual obligations. Except in the case of intent or gross negligence, Nelly's liability for material contractual obligations shall be limited to the amount of damages typically foreseeable at the time of the conclusion of the contract.
15.3 In all other respects, liability of Nelly is excluded, regardless of its legal basis, unless Nelly is compulsorily liable by law, in particular due to injury to life, body or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by Nelly are in principle only made in writing and are designated as such.
15.4 The limitations of liability of the preceding paragraphs shall also apply to claims against legal representatives, executives, employees and agents as well as other vicarious agents of Nelly.
16. secrecy
16.1 The parties undertake to treat as confidential all confidential information of the other party, for example of a technical, commercial or organizational nature, of which they become aware during the performance of the license agreement and to use it only for contractually agreed purposes. The duty of confidentiality shall not apply to such persons who are authorized to take cognizance and are legally or contractually bound to secrecy or if the other party has consented to the disclosure.
16.2 Confidential information within the meaning of this provision shall be practice content, documents, details, data and information which are designated as confidential or which by their nature are to be regarded as confidential. The term Confidential Information shall not include such information that (i) is or becomes in the public domain or in the public domain (unless due to a breach of this Agreement by the Receiving Party or any of its Representatives); (ii) was already lawfully in the Receiving Party's possession without any obligation of confidentiality prior to its receipt from the Disclosing Party; or (iii) was received from a third party that is entitled to disclose such information without restriction.
16.3 If a party is obliged to make confidential information of the other party available to a public body in the aforementioned sense, it shall be entitled to do so; the other party shall be informed immediately and, if possible, before the information is released to the public body.
16.4 The rights and obligations under this Clause 15 shall not be affected by any termination of this Agreement.
17. data protection
17.1 Nelly knows and respects the special need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection provisions. The agreement on commissioned data processing in Annex 1 applies to the protection of personal data.
17.2 The Practice shall be responsible for obtaining the necessary declarations of consent from the users of the Platform and their patients to the
processing of personal data via the platform. In addition, the practice
obliged to comply with the specifications in Annex 2.
17.3 Nelly shall take technical and organizational measures to protect the data against unauthorized access and for daily data backup. Details result from the agreement on commissioned data processing in Annex 1.
17.4 Upon termination of the User Agreement, Nelly shall, at the option of the Practice, delete or surrender to the Practice all Personal Data and irrevocably delete any existing copies of the Data.
18. final provisions
18.1 The provisions of the contract of use shall replace all oral or written agreements between the parties. Amendments or supplements to the license agreement - including this written form clause - and its annexes must be made in writing to be effective.
18.2 The contract of use shall be governed in application and interpretation exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 is excluded.
18.3 To the extent permitted by law, Berlin is agreed as the exclusive place of jurisdiction for all claims arising from and in connection with the User Agreement.
1 Scope
1.1 These are the terms of use of Nelly Solutions GmbH (hereinafter "Nelly"). They govern the business relationship between Nelly and medical practices (hereinafter "practices") that wish to use the Nelly Solutions software (hereinafter "platform") and that conclude a corresponding user agreement with Nelly (hereinafter "user agreement").
1.2 Deviating, conflicting or supplementary General Terms and Conditions of Practices shall only become part of the contract if Nelly has expressly agreed to their validity in text form. This requirement of consent also applies if Nelly begins with the performance of services in knowledge of the general terms and conditions of a practice.
2 Subject matter of the contract
2.1 Nelly offers the Platform as a cloud-based software-as-a-service solution for practices. Via the platform, practices can
2.2 Nelly does not provide any documents, data or other content to the practices themselves, but offers a software solution for organizing and editing practice-owned content that can be uploaded to the platform by practice employees (hereinafter "Users") (hereinafter "Practice Content").
2.3 Nelly pays particular attention to the high need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection regulations as well as on the basis of the agreement on commissioned data processing concluded with the practice.
3 Conclusion of contract
3.1 Nelly shall submit an offer to the practice regarding the use of the platform (hereinafter "Offer"). The offer defines in particular the term of the contract, the agreed scope of services and the remuneration to be paid by the practice.
3.2 The fee-based contract of use between Nelly and the practice comes into effect when the offer signed by the practice is received by Nelly. Nelly shall thereupon confirm the conclusion of the contract to the practice in writing or by e-mail.
4 Functions of the platform
4.1 Nelly allows the practice to access the modules selected in the offer.
4.2 Unless otherwise agreed by the Parties in the User Agreement, the modules mentioned shall comprise the following functions:
(a) Medical History Module:
(b) Variable Documents Module:
(c) Payment processing module, on behalf of the practice:
(d) Invoice Dispatch Module:
4.3 In all modules, users can upload or create their own practice content on the platform and complete it based on transmitted and/or Nelly-collected data and signatures of patients according to clauses 6, or 7. Users can then manage and archive the documents via the platform.
4.4 Further services are not owed by Nelly. In particular, Nelly is not obligated to check whether the intended use of the Practice Content for the Practice's own purposes is lawful.
4.5 Nelly may update and further develop the platform at any time and adapt it in particular due to a changed legal situation, technical developments or to improve IT security. In doing so, Nelly will adequately consider the legitimate interests of the practice and inform the practice in due time about necessary updates.
4.6 Nelly does not owe a customization to the individual needs or IT environment of the practice, unless the parties have agreed otherwise in the offer.
4.7 Due to the performance of necessary maintenance work and improvements, the platform or individual functions may not be available for a short period of time. In this case, Nelly shall take into account the legitimate interests of the practice, in particular by providing advance information in a timely manner. The claim to use the platform exists only according to the current state of the art and the availability mentioned in clause 11.
5 Access to the platform
5.1 The platform is accessed via Internet browser. The practice itself must ensure a sufficient Internet connection. The practice is responsible for compliance with the system requirements necessary for the use of the platform, in particular with regard to an up-to-date operating system and browser.
5.2 The number of authorized users within the practice is specified in the offer. The practice may only grant access to the platform to persons who are employed by the practice, including temporary staff.
5.3 If the practice wishes to grant access to the platform to persons outside its organization (hereinafter "external users"), it must first obtain Nelly's express consent in text form. Consent for External Users named in the Offer shall be deemed granted. External Users may use the functions of the Platform in the same way as practice-internal Users. They shall be deemed vicarious agents of the practice within the meaning of § 278 BGB. The practice will indemnify Nelly against all claims of third parties which these third parties assert against Nelly due to violations of contractual or legal obligations in connection with the implementation of this user agreement, provided that external users are responsible for these violations.
5.4 Nelly may temporarily block the practice's access to the platform if there are concrete indications that a practice violates statutory provisions or the obligations under this agreement or is in default with the payment of a fee. Nelly will consider the legitimate interests of the practice when deciding on a block, in particular whether there are indications that the practice is not at fault for the violation. Nelly will lift the block as soon as the violation or default has ended.
6 Practical contents and data
6.1 Users may upload practice content (including, in particular, practice documents, practice data and patient data) to the platform and use and edit it on the platform.
6.2 The practice warrants that the execution of the contract with respect to all contributions uploaded by its users on the platform (in particular practice content and other data) does not conflict with any third party rights.
6.3 The practice shall indemnify Nelly from all claims of third parties resulting from a contractual use of practice contents or other data by Nelly which originate from the sphere of the practice. In this respect, the practice shall also bear the costs of a necessary legal defense of Nelly.
7 Digital signatures and patient data
7.1 The practice has the option via a function of the platform to obtain signatures of its patients on certain documents as digital signatures. In this case, Nelly shall enter into direct contact with the respective patient on behalf of the practice. The contact is established via the patient's contact data provided by the practice or by the patient himself. The practice guarantees that the establishment of contact by Nelly and the obtaining of signatures and declarations of consent by Nelly in accordance with the contract do not violate any rights of third parties. This applies in particular to data protection requirements.
7.2 Nelly warrants that Nelly can, if required, provide the practice with user data in relation to each digital signature obtained by Nelly on the basis of the user agreement, with the help of which it can be clearly determined which person made the respective digital signature. If it is not possible to determine the person, Nelly shall compensate the practice for the damage incurred by the practice as a result.
8 Tablets
8.1 If agreed in the Offer, Nelly shall provide the Practice with tablets for the term of the Agreement on which the Practice can enable its patients to fill out and sign documents of the Practice. For this, the practice shall pay the rental fee specified in the offer.
8.2 The practice is obliged to return the tablets to Nelly at its own expense within one week after the end of the contract period.
8.3 If the practice determines that a tablet is not functioning properly, the practice is obligated to inform Nelly of this in text form. Upon Nelly's request, the practice is also obligated to return a tablet to Nelly at Nelly's expense in such a case.
8.4 In the event of damage to the tablet, Nelly shall charge the practice a flat fee of EUR 30, unless the practice is not responsible for the damage or functional impairment of the tablet.
9 Payment processing
9.1 Nelly enables the billing and payment processing of treatments performed for private patients and self-paying patients. For the collection of payment data, Nelly enters into direct contact with the respective patient via the platform on behalf of the practice. The contact is established via the patient's contact data provided by the practice or by the patient himself.
9.2 The invoice shall be issued in the manner specified in the offer,
In all cases, Nelly creates the invoices through a platform function and delivers them to the patient on behalf of the practice.
9.3 For payment processing, Nelly integrates the payment service provider Stripe Inc., 354 Oyster Point Boulevard, South San Francisco, California, 94080, USA ("Stripe"). All services associated with payment processing are performed on behalf of the Practice. It is a condition of payment processing that the Practice enters into a Connected Account Agreement with Stripe, as set forth in the Proposal.
9.4 The Patient shall pay the invoice amount directly to Stripe. The payment methods specified in the Offer are available to the Patient for this purpose. Stripe will forward the payment amount received, less the Nelly and Stripe fees specified in the Offer, to the Practice. Nelly does not have access to the invoice amount paid by the patient at any time.
10 Participation of the practice
10.1 The practice alone is responsible for the accuracy of the practice content and other data transmitted to Nelly and fed into the platform. This also applies in particular to all data that the practice transmits to Nelly for billing purposes.
10.2 In the event of errors in the practice content or other data, the practice shall inform Nelly thereof without delay.
10.3 Likewise, the practice shall inform Nelly immediately about defects and malfunctions of the platform and explain the detailed circumstances. Nelly will then remedy defects within a reasonable period of time. Nelly is entitled to remedy defects by a work-around solution if the cause of the defect itself can only be remedied with disproportionate effort and the usability of the platform is not significantly impaired.
11 Availability
11.1 Nelly shall provide the services specified in the offer during the agreed operating hours. Unless expressly agreed otherwise in the offer, the platform is available between 8:00 a.m. and 6:00 p.m. CET or CEST on all calendar days with the exception of Saturdays, Sundays, nationwide public holidays and with the exception of December 24 and 31 of each year (operating hours).
11.2 Nelly grants a minimum technical availability of the Platform of 99% during the Operating Hours. The availability, expressed as a percentage, is calculated as follows:
Total number of operating time minutes in a calendar month minus the total number of downtime minutes during operating time in the same calendar month divided by the total number of operating time minutes in the same calendar month.
11.3 Service interruptions shall be remedied by Nelly within one week at the latest.
11.4 The platform is available around the clock.
12 Contract duration
12.1 The User Agreement shall have the term agreed between the Parties in the Offer. Within this contract term, either party may terminate the contract by giving three (3) months' notice to the end of the month. If the User Agreement is not terminated by either party at least three (3) months prior to the expiration of its term, it shall be automatically extended by the originally agreed term, unless otherwise agreed in the offer.
12.2 The right of both parties to terminate without notice for good cause remains unaffected. Good cause for termination by Nelly exists in particular if unauthorized third parties gain access to the platform and the practice or its users are responsible for this.
12.3 Notices of termination must always be in text form.
13 Compensation
13.1 The remuneration to be paid by the practice is specified in the offer.
13.2 All remunerations stated in the offer or in these Terms of Use shall be exclusive of the statutory value added tax.
13.3 Unless otherwise expressly agreed in the offer, the remuneration is due for payment within fourteen days after Nelly has issued the invoice. Unless otherwise agreed in the offer, Nelly shall invoice the services on a monthly basis.
13.4 Nelly's claim to remuneration shall arise upon conclusion of this User Agreement and shall be independent of whether the practice actually makes use of or uses the agreed services.
14 Rights of use
14.1 Nelly grants the Practice the non-exclusive, non-transferable and non-sublicensable right to use the Platform for the duration of the User Agreement for the purpose provided for in the User Agreement and with the number of Users specified in the Offer.
14.2 The practice grants Nelly the free, non-exclusive, non-sublicensable and non-transferable rights of use to all practice content required for the intended use of the platform (in particular for the provision of the functions specified in the offer), in particular, to the extent required, the right of reproduction, the right of editing, the right to online storage, transmission and reproduction as well as the database and archiving right.
14.3 Nelly reserves the right to aggregate non-personal data of the practice and its Users and to use it in this form for the purpose of demand-oriented design, further development and optimization of the platform as well as the provision of the service owed under the contract.
15 Limitation of liability
15.1 Insofar as Nelly provides the practice with access to websites, APIs, databases or other infra structures of third parties, Nelly shall neither be responsible for their availability nor for contents obtained therefrom (in particular content or quality of data). Nelly shall therefore not be liable for any resulting damages to the practice, to the extent permitted by law.
15.2 Nelly shall be liable for damages insofar as these were caused intentionally or by gross negligence on the part of Nelly or result from Nelly's breach of obligations, the fulfillment of which is essential for the proper performance of this contract and on the compliance with which the practice may rely, so-called material contractual obligations. Except in the case of intent or gross negligence, Nelly's liability for material contractual obligations shall be limited to the amount of damages typically foreseeable at the time of the conclusion of the contract.
15.3 In all other respects, liability of Nelly is excluded, regardless of its legal basis, unless Nelly is compulsorily liable by law, in particular due to injury to life, body or health of a person, assumption of an express guarantee, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by Nelly are in principle only made in writing and are designated as such.
15.4 Nelly's strict warranty liability for initial defects pursuant to § 536a para. 1 1st Alt. BGB (German Civil Code) is excluded - unless it is a matter of injury to life, body, health or material contractual obligations. Otherwise, a claim for damages of the practices for initial defects exists only if Nelly is responsible for their existence or non-elimination.
15.5 The limitations of liability of the preceding paragraphs shall also apply to claims against legal representatives, executives, employees and agents as well as other vicarious agents of Nelly.
16 Secrecy
16.1 The parties undertake to treat as confidential all confidential information of the other party, for example of a technical, commercial or organizational nature, of which they become aware during the performance of the license agreement and to use it only for contractually agreed purposes. The duty of confidentiality shall not apply to such persons who are authorized to take cognizance and are legally or contractually bound to secrecy or if the other party has consented to the disclosure.
16.2 Confidential information within the meaning of this provision shall be practice content, documents, details, data and information which are designated as confidential or which by their nature are to be regarded as confidential. The term Confidential Information shall not include such information that (i) is or becomes in the public domain or in the public domain (unless due to a breach of this Agreement by the Receiving Party or any of its Representatives); (ii) was already lawfully in the Receiving Party's possession without any obligation of confidentiality prior to its receipt from the Disclosing Party; or (iii) was received from a third party that is entitled to disclose such information without restriction.
16.3 If a party is obligated to make confidential information of the other party available to a public body in the aforementioned sense or if an exception pursuant to Section 5 of the German Business Secrets Act applies, this shall not constitute a breach of this confidentiality obligation; however, the other party shall be informed immediately and, if possible, before the information is released to the public body.
16.4 The rights and obligations under this Clause 16 shall not be affected by any termination of this Agreement.
17 Data protection
17.1 Nelly knows and respects the special need for protection of patient data. Nelly therefore treats personal data (in particular patient data) confidentially and in accordance with the statutory data protection provisions. The agreement on commissioned data processing in Annex 1 applies to the protection of personal data.
17.2 The Practice is responsible for obtaining the necessary declarations of consent from the Users of the Platform and their patients for the processing of personal data via the Platform.
17.3 Nelly shall take technical and organizational measures to protect the data against unauthorized access and for daily data backup. Details result from the agreement on commissioned data processing in Annex 1.
18 Final provisions
18.1 The provisions of the contract of use shall replace all oral or written agreements between the parties. Amendments or supplements to the license agreement - including this written form clause - and its annexes must be made in writing to be effective.
18.2 The User Agreement shall be governed exclusively by and construed in accordance with the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.
18.3 To the extent permitted by law, Berlin is agreed as the exclusive place of jurisdiction for all claims arising from the usage agreement.