1. Scope, order of precedence
These support conditions govern the provision and use of hotline support and software maintenance services exclusively for entrepreneurs, legal entities under public law, and special funds under public law.
The General Terms and Conditions of PHYSIOMED ELEKTROMEDIZIN AG apply in addition; conflicting terms and conditions of the user shall not become part of the contract even without express objection.
In the event of contradictions between these support conditions and the General Terms and Conditions, these support conditions shall take precedence as a more specific provision; otherwise, the General Terms and Conditions shall apply in addition.
2. Subject matter of the contract, supported products and versions
Support (hotline and software maintenance) is only provided for standard versions of the PHYSIOMED ELEKTROMEDIZIN AG software products specified in the contract, provided that these are used unchanged and in the recommended configuration/system environment at the agreed place of operation. Third-party products are not covered by this agreement, even if they were delivered together with products from PHYSIOMED ELEKTROMEDIZIN AG.
Support is provided for the latest version released for general marketing and its immediate predecessor version; previous versions are supported for at least six months after the release of the successor version. The user is obliged to always use the current version of the supported products.
3. Scope of services Software maintenance (baseline)
Updates: PHYSIOMED ELEKTROMEDIZIN AG provides the generally approved changes (updates) to the current maintenance status; these are provided online or on data carriers by mail. The user independently accesses the provided services/program components via the designated access points.
Upgrades: During the term of the contract, PHYSIOMED ELEKTROMEDIZIN AG provides upgrades (technical developments/functional enhancements without changing the essential program technology) for a separate fee; the versioning remains recognizable and the program name remains unchanged.
Error acceptance/correction: PHYSIOMED ELEKTROMEDIZIN AG accepts error reports and corrects errors as part of the update service or through generally released information/service packs. The content of upgrades/updates/service packs is determined at the discretion of PHYSIOMED ELEKTROMEDIZIN AG; there is no entitlement to the inclusion of additional functionalities. Where reasonable, errors will be corrected as part of the next regular update.
4. Scope of hotline support services (baseline)
During PHYSIOMED ELEKTROMEDIZIN AG's general business hours, the hotline will answer case-related questions about the use of the supported products, documentation, program flow, and use in the specified configuration/system environment via the designated communication channels. PHYSIOMED ELEKTROMEDIZIN AG will provide the current business hours upon request.
The aim of the hotline is to enable the proper execution of individual use cases and to enable users to resolve/circumvent problems themselves; a specific solution to the problem is not guaranteed. The hotline is not a substitute for training/instruction and can only be used by appropriately qualified employees of the user who are experienced in handling the products and system environment.
5. Services not owed (delimitation)
The support conditions do not include training, instruction, software installation, individual form/function adjustments, data backup checks, on-site support, or IT integration.
PHYSIOMED ELEKTROMEDIZIN AG provides such services—subject to availability—only in return for separate remuneration in accordance with the general price list and, if applicable, in accordance with the service options specified in the General Terms and Conditions (delivery/assembly/commissioning/IT integration/instruction).
6. User's obligations to cooperate
6. User's obligations to cooperate
Contact person: The user shall designate a qualified contact person trained in the use of the supported products, including a deputy, who can implement instructions/changes/solution steps.
Current version status: The user shall always use the current version of the supported products.
System environment/technology: The user shall provide the necessary technical operating environment at their own expense and ensure that it is functional; to minimize errors, the technical equipment should be procured from PHYSIOMED ELEKTROMEDIZIN AG. They shall maintain the infrastructure for remote data transmission (telephone, fax, e-mail, Internet) in a functional condition.
Error documentation: The user describes error symptoms, the program version used, the hardware/system environment, and any third-party software in detail using the forms provided; employees assist in troubleshooting/error correction.
Access data/passwords: Passwords/access numbers provided must be treated as confidential and protected against misuse; necessary temporary admin/remote access must be provided for support purposes.
Data backup: The user is responsible for regular data backups; in particular, a complete data backup must be performed prior to support/maintenance measures and made available in full to PHYSIOMED ELEKTROMEDIZIN AG for the purpose of problem analysis. If this is not provided, PHYSIOMED ELEKTROMEDIZIN AG is not obliged to cooperate.
Obligation to retrieve: The user shall retrieve the services, programs, and program components provided independently via the retrieval points provided by PHYSIOMED ELEKTROMEDIZIN AG.
Self-help information: Before contacting the hotline, the user shall check whether a solution is already available in the manual, training documents, or troubleshooting guide.
7. Remuneration and payment terms
The user shall pay a monthly fee for the agreed support services in accordance with the currently valid general price list plus VAT. Invoices shall be issued at the beginning of the contract period for one year in advance and thereafter annually in advance; services shall only be provided after receipt of payment for the respective billing period.
Expansion of clients: If the user expands the number of authorized clients, the scope of support/maintenance shall automatically expand; PHYSIOMED ELEKTROMEDIZIN AG shall be entitled to invoice the fee in accordance with the price list from the start of use.
Price changes: PHYSIOMED ELEKTROMEDIZIN AG may adjust the contractually agreed fees in line with general price developments at the earliest after the end of the first contract year, at most once per calendar year. If the increase exceeds 10%, the user may terminate the contract within one month of receipt of the notification of the increase taking effect.
Default of payment/right of retention: In the event of default, PHYSIOMED ELEKTROMEDIZIN AG is entitled to charge default interest at a rate of 9 percentage points above the ECB base rate; further rights remain unaffected. The user is only entitled to offset or withhold payment with undisputed or legally established counterclaims.
Deviation from the General Terms and Conditions: Notwithstanding the payment terms applicable to the delivery of goods in the General Terms and Conditions, the above provisions shall apply exclusively to support services.
8. Rights of use and third-party property rights
Unless otherwise agreed, the user acquires only a simple right of use for the intended program execution within the scope/restrictions of the replaced programs/program parts.
Information (help texts, changelogs, etc.) provided by PHYSIOMED ELEKTROMEDIZIN AG via online information services may be reproduced by the user for their own purposes; distribution is prohibited.
The user shall inform PHYSIOMED ELEKTROMEDIZIN AG immediately of any infringements of third-party property rights and shall leave the legal defense to PHYSIOMED ELEKTROMEDIZIN AG at its expense. PHYSIOMED ELEKTROMEDIZIN AG is entitled to make any software changes necessary due to property right claims, even for goods that have already been delivered/paid for.
9. Warranty for material defects and defects of title (support services)
Warranty period: One year.
Obligation to give notice of defects: Obvious defects must be reported immediately, at the latest within two weeks of delivery/transfer; other defects must be reported immediately after discovery. For intangible products made available for download, the period for reporting obvious defects ends no later than 12 weeks after they've been made available on the Internet. Reports must be made in writing using the forms provided, with a clear description of the defect.
Subsequent performance: PHYSIOMED ELEKTROMEDIZIN AG is entitled to remedy defects at its own discretion by eliminating them or delivering defect-free goods; for this purpose, a new release may be provided or necessary changes may be made at no additional cost; if reasonable, the defect will be remedied as part of the next update.
Cooperation/reimbursement: The user shall support the rectification of defects; if it transpires that services were not required as a result of a breach of duty by PHYSIOMED ELEKTROMEDIZIN AG, the user shall reimburse these and reimburse the costs incurred on the basis of the applicable hourly/travel expense rates.
Clarification: The above provisions regarding complaints and deadlines apply exclusively to support services; for deliveries of goods, the complaint deadlines specified in the General Terms and Conditions apply.
10. Liability
PHYSIOMED ELEKTROMEDIZIN AG shall be liable for intent and gross negligence as well as for damages resulting from injury to life, limb, or health based on culpable breach of duty by PHYSIOMED ELEKTROMEDIZIN AG, its legal representatives, or vicarious agents.
Otherwise, liability is excluded or limited to the foreseeable damage typical for this type of contract in the event of a breach of essential contractual obligations (cardinal obligations); claims for lost profits, saved expenses, indirect and consequential damages are excluded, unless a characteristic guaranteed by PHYSIOMED ELEKTROMEDIZIN AG is intended to cover them.
PHYSIOMED ELEKTROMEDIZIN AG is not liable for damages if the user could have prevented them by taking reasonable measures, in particular program and data backup. The provisions apply in favor of employees/vicarious agents; the Product Liability Act remains unaffected.
11. Data protection and order processing
Insofar as personal data is accessed within the scope of support/maintenance services, the GDPR and BDSG apply; if necessary, the parties shall conclude a data processing agreement (DPA).
The user shall ensure that it has the necessary legal basis for processing and that the technical and organizational measures (TOM) are complied with; PHYSIOMED ELEKTROMEDIZIN AG shall provide services exclusively for the specified purpose and shall maintain confidentiality.
Secure access must be provided for remote access by PHYSIOMED ELEKTROMEDIZIN AG; accesses are logged. Access data must be treated confidentially.
12. Retention of title and assignment
PHYSIOMED ELEKTROMEDIZIN AG retains ownership of any program carriers delivered and the right to use the software until all claims have been paid in full. Upon acquisition of ownership of program carriers, the user acquires the rights of use specified in the product license.
The user assigns claims from resale/sublicensing in advance to PHYSIOMED ELEKTROMEDIZIN AG; the exercise of retention of title does not constitute withdrawal.
13. Term of contract and termination
The agreement shall enter into force upon signature or on the agreed service date and shall initially be valid for one year; it shall be extended for a further year in each case unless terminated in writing (at least in text form) with three months' notice prior to expiry.
The right to extraordinary termination remains unaffected.
14. Unilateral adjustment of terms and conditions (with right of termination)
PHYSIOMED ELEKTROMEDIZIN AG may amend these support terms and conditions by written notice; the amendments shall take effect within one month of receipt.
If changes are made to the detriment of the user, the user may terminate the agreement within one month of receipt; this right shall be indicated in the notification.
15. Place of performance, place of jurisdiction, choice of law
The place of performance is the registered office of PHYSIOMED ELEKTROMEDIZIN AG.
If the user is a merchant or has its registered office abroad, the place of jurisdiction is the registered office of PHYSIOMED ELEKTROMEDIZIN AG; PHYSIOMED ELEKTROMEDIZIN AG is also entitled to bring legal action at the user's general place of jurisdiction.
German law applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
16. Contact details
Support contact: Telephone and email in accordance with the contact details provided by PHYSIOMED ELEKTROMEDIZIN AG.
Current hotline hours and communication channels are announced by PHYSIOMED ELEKTROMEDIZIN AG on an ongoing basis.
17. Final provisions
Severability clause: Should individual provisions of these support conditions be or become invalid, the validity of the remaining provisions shall remain unaffected; they shall be replaced by the statutory provisions.
Linguistic equality: Designations of persons and roles (e.g., user, customer) apply equally in every grammatical form.