All­ge­mei­ne Nut­zungs­be­din­gun­gen

Terms of Use of Needs & Access GmbH, Munich, for the portal at the domains payers-insights.de and/or payers-insights.com

Preamble

Needs & Access GmbH (hereinafter referred to as: “N&A”) operates an online portal on the domains payers-insights.de and/or payers-insights.com, on which registered users can access information on the pharmaceutical products and health care market. In addition, there is a non-public user forum (hereinafter referred to as: “Forum”) for sponsors and/or employees of the so-called Gemeinsame Selbstverwaltung (joint self-administration) and clinical pharmacists (hereinafter referred to as: “Payers”), in which such Payers can exchange information.

The pharmaceutical industry and its service providers (hereinafter referred to as: “Commercial Users”) may use such online portal against a fee, however, they are not allowed to use or access the Forum.

In the part of the online portal that is accessible to the general public, N&A provides editorial information on all subjects related to the pharmaceutical products and health care market. In addition, Commercial Users shall be enabled to place their own contents, and neither the contents provided by Commercial Users nor contents provided by the editor will be marked as such.

The purpose of the portal is to enable Payers to provide and freely exchange information on the pharmaceutical products and the health care market on a specialist, cross-industry platform.

N&A is neither a representative nor a messenger of a Payer or Commercial User, nor does it verify the correctness of contact data or contents except for the contents provided by N&A or its editorial staff.
Dies vorausgeschickt, regeln die nachstehenden Nutzungsbedingungen die rechtliche Beziehung zwischen n&a und den Payern sowie den kommerziellen Nutzern.

Now therefore, the following Terms of Use shall govern the legal relationship between N&A and the Payers and the Commercial Users.

Section 1. Subject matter of the user agreement

After registration by the Payer or the Commercial User and after a notification on the successful activation of the user account sent by N&A, the user agreement shall take effect to the extent stipulated in such notification. Payers shall use the portal free of charge. For Commercial Users, the use of the portal is subject to costs.

(1) N&A offers to its registered Commercial Users the opportunity to place their own contents on the online portal (against a fee).

(2) N&A provides the registered Payers with free-of-charge access to the Forum. A separate registration is required for the access to the Forum in the course of which N&A verifies whether such user is an eligible user (Payer) (members of health insurance funds, associations of panel physicians, institutions of joint self-administration, governmental departments, clinical pharmacists, etc.). N&A reserves the right to request further evidence in order to be able to allocate the Payer to such group of eligible users. This shall not be deemed to be a guarantee that the Forum is used by eligible users exclusively.

(3) In the registration process, each Payer shall be obliged to provide his/her current and correct name, address and contact data and to inform us of any changes by changing the settings of his/her user account. If the user provides incorrect information, we shall be entitled to block the account; if the user does not correct such incorrect information, the user account may be deleted. In connection with the use of the online portal, N&A shall not transfer any user data except for the user name the Payer chose when he/she created his/her user account. Such user name shall also be the sender’s address for the use of the integrated automated message system in the Forum. Only N&A can identify the Payer via his/her user name, other Payers cannot. With his/her registration, the Payer affirms that he/she belongs to the eligible group of persons. If a Payer ceases to belong to the eligible group of persons during the term of use, such Payer shall be obliged to inform N&A thereof without delay and to delete his/her user account.

(4) With the Forum, N&A offers an integrated automated messaging system in order to facilitate communication between the Payers as well as functionalities for the administration of user accounts and for the transmission of messages and annexes in any data format.

(5) N&A provides lists of links and articles on the pharmaceutical products and health care market.

(6) Against a fee, registered Commercial Users may access certain information contained on the portal and may publish their own information on the portal sites. No direct contact can be established between Commercial Users and Payers via the online portal functions. A registered Commercial User may publish information on his/her company and/or his/her products or areas of treatment via a personal company website or via subject-related websites.

(7) N&A shall be obliged to provide the registered Payers and Commercial Users with a state-of-the-art online portal. For technical reasons, a part of the operating time must be dedicated to maintenance work, however, N&A shall use its best efforts to announce any restrictions due to maintenance work in advance. To the extent the portal is used free of charge, neither Payers nor Commercial Users shall be entitled to demand a certain availability of the online portal.

(8) N&A shall provide Payers and Commercial Users with access via N&A’s access facilities with an annual average minimum availability of 98.5 %. To the extent possible, N&A shall inform Commercial Users of any unscheduled maintenance work in advance. During maintenance work, the online portal will be unavailable or its availability will be restricted.

(9) N&A shall offer services to merchants in accordance with the valid price list. Contents and prices of such services shall be stipulated on the valid price list. Payers and Commercial Users shall be responsible for their own published contents in accordance with general statutory provisions. In particular, regulations on e-commerce, competition, trademark and copyright as well as on price information and sector-specific regulations such as the Law on the Advertising of Medicaments (HWG), the Drug Law (AMG) and the Medical Devices Act (MPG) shall apply.

(10)Payers and Commercial Users shall be responsible for their own published contents in accordance with general statutory provisions. Any abusive use or any publication of contents not in compliance with statutory provisions shall cause the blocking and/or deletion of the user account.

(11)The subject matter of these Terms of Use shall not be the acquisition (free or against payment) of any goods or services of a medical nature.

Section 2. Registration / change of the user account data / revocation right

(1) The online portal can only be used after a successfully completed registration. An entitlement to a successful registration does not exist.

(2) Individuals who are of legal age and who have legal competency as well authorized representatives of legal entities and public institutions may register. An additional prerequisite for the registration as a Commercial User is the provision of an address for service. A legal entity can only be registered if the authorized representative is named.

(3) All data stipulated upon registration must be true and correct. No incorrect data and/or fictitious names may be used for the registration process. However, fictitious names, i.e. nicknames, can be used on the online portal or in the Forum after successful registration. N&A reserves the right to block a user account after successful registration if it finds out that the Payer or Commercial User provided incorrect or incomplete information during the registration process. This shall not affect the right to terminate the user agreement.

(4) The registration process is free of charge for Payers and for Commercial Users. However, additional costs for the use of the access to the internet may be charged by third party providers (telecommunication service providers). For Commercial Users, the use of the online portal is subject to costs.

(5) In order to be able to complete the registration process, the user must agree to these Terms of Use.

(6) During the registration process, Payers and Commercial Users choose a password. Such password, together with the e-mail address stipulated during the registration process, enables the users to access N&A’s online portal after successful registration.

(7) After successful registration, each Payer and Commercial User will be able to use N&A’s portal to the extent stipulated in these Terms of Use and in the notification of activation of the account. The user does not have the right to demand additional services and/or such right shall only arise based on a separate agreement with N&A.

(8) N&A reserves the right to request additional documents from the Payers and Commercial Users in order to verify their eligibility to use the online portal.

(9) The registration process for Commercial Users who made an agreement to use the online platform against a fee can only be successfully completed if the relevant fee was paid.

(10)Payers and Commercial Users shall be obliged to inform N&A without delay of any changes of the user account data incurring after registration. The Payers and Commercial Users can change the user account data by changing the settings on the online portal.

(11)Each Payer using N&A’s free-of-charge services shall be entitled to delete his/her user account at any time without notice and/or to cease to use such free-of-charge services.

Section 3. User account / status of the user account

(1) Payers and Commercial Users are prohibited from opening more than one user account each. Access data and passwords may not be disclosed to third parties. The user account must not be transferred to third parties. Upon agreement with N&A, legal entities may open user accounts for more than one of their employees. The prices stipulated in the relevant price list, as amended, shall apply.

(2) The Payers and Commercial Users shall be obliged to treat their access data confidentially. N&A must be informed immediately of any indication that a user account might be or was misused by a third party.

Section 4. User fees / fee reductions / invoicing process

(1) Payers shall be entitled to use N&A’s services free of charge, there is no minimum term of contract.

(2) Commercial Users shall be entitled to use N&A’s services without a minimum term. Time restrictions of the use of services that are subject to costs are stipulated in the relevant price list, as amended.

Section 5. Offered contents / prohibited contents

(1) Goods or services may not be advertised or offered and/or information may not be published if the offer, sale or acquisition thereof violates statutory provisions or offends common decency. Information or advertisements may only be published to the extent stipulated in section 1 of the HWG.

(2) Contents must not be described or offered, if

the promotion, offer or distribution of such contents violates copyrights and ancillary copyrights, industrial property rights (such as trademarks, patents, utility models and design patents) or other rights (e.g. the privilege as to one’s own image, rights to a name and rights to privacy);
- such contents are propaganda materials and/or bear the marks of unconstitutional organizations;
-the ownership of such contents is legally admissible, however, the use thereof is prohibited.

(3) N&A reserves the right to delete any contents if there is concrete evidence that such contents violate applicable laws or these Terms of Use.

Section 6. Contractual obligations

(1) Commercial Users shall be obliged to pay user fees, if any, in accordance with the terms of the relevant price list, as amended.

(2) For any failure to pay such fees within the periods of time stipulated therein, default interest shall become due. There shall be no obligation to send a reminder.

Section 7. Contract language

The contract language for the use of the online portal is German.

Section 8. Electronic communication

(1) Payers and Commercial Users understand that unencrypted electronic communication is generally not confidential. Therefore, when using this form of communication, Payers and Commercial Users bear the risk that their data may be disclosed to unauthorized third parties.

(2) Data transmitted via the platform shall be transmitted without encryption. Only the data sent during the registration process for a user account and during log-in shall be transmitted in encrypted form.

Section 9. Google Analytics

This website uses Google Analytics, a web analytics service provided by Google, Inc. ("Google"). Google Analytics uses "cookies", which are text files placed on your computer, to help the website analyze how users use the site.

The information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored by Google on servers in the United States. Google will use this information for the purpose of evaluating your use of the website, compiling reports on website activity for website operators and providing other services relating to website activity and internet usage. Google may also transfer this information to third parties where required to do so by law, or where such third parties process the information on Google's behalf. Google will not associate your IP address with any other data held by Google. You may refuse the use of cookies by selecting the appropriate settings on your browser, however please note that if you do this you may not be able to use the full functionality of this website. By using this website, you consent to the processing of data about you by Google in the manner and for the purposes set out above.

For further information on the privacy policy concerning Google Analytics, please go here: http://www.google.com/analytics/learn/privacy.html

Section 10. Third party rights / transfer of contract

(1) N&A reserves the right to transfer its rights and obligations from the user agreement to third parties in whole or in part upon six weeks’ prior notice.

(2) In such case, registered Payers and Commercial Users shall be entitled to extraordinarily terminate the user agreement in accordance with the provisions of these Terms of Use after receipt of the notification of the transfer of contract.

Section 11. Blocking of accounts / contractual penalty

(1) N&A shall be entitled to bar Payers or Commercial Users from accessing the online portal via their user accounts if such Payers or Commercial Users let a term expire that was set beforehand by N&A together with the threat to block such account.

(2) N&A shall in particular be entitled to block a user account if a Payer or a Commercial User violates the provisions contained in Section 5 or Section 6 of these Terms of Use.

(3) In order to exclude any liability of N&A, such account shall remain blocked until the relevant Payer or Commercial User represents and, if required, provides evidence for, the legality of the contents provided by such Payer or Commercial User. The same shall apply in case of investigations by the public prosecutor’s office. The blocking of an account shall only be excluded in case of obviously unfounded third party claims.

(4) N&A reserves the right to block and delete a user account if a Payer does not use N&A’s services for a period of 12 consecutive months.

(5) If a Payer violates his/her obligation to immediately delete his/her user account if he/she ceases to be a member of the eligible group of persons, he/she shall incur a penalty, the amount of which is to be reasonably determined by N&A but no less than EUR 5,100.00 in the individual case.

Section 12. Termination of contract / reimbursement of fees paid in advance

(1) The user agreement may be terminated by N&A or the Commercial User upon three months’ prior notice as of the end of the relevant minimum contract term. Unless terminated as described above, the user agreement shall be automatically renewed by a term corresponding to the initial term of contract.

(2) Any termination of the user agreement by a Commercial User must be in writing or in electronic form (in accordance with section 126b and section 127 (1) of the German Civil Code) and addressed to N&A’s address.

(3) Each party shall be entitled to terminate the user agreement for good cause without notice. A good cause shall be deemed to exist for N&A, if:

- the Commercial User violated his/her obligations resulting from Section 6 of these Terms of Use twice;
- the Payer or Commercial User violated the provisions of Section 5 of these Terms of Use three times.

(4) If the user agreement is terminated extraordinarily, any fees paid in advance shall not be reimbursed.

Section 13. Liability / limitations on liability

(1) N&A’s liability for misuse due to an unauthorized use of the user data and passwords shall be excluded if such misuse is caused by the Payer or the Commercial User.

(2) In addition, N&A’s liability to Payers and Commercial Users shall be limited to any damage resulting from material contractual obligations and to any damage caused by N&A’s, its legal representatives’ or officers’ gross negligence or wilful intent. N&A’s liability for its other vicarious agents shall be limited to wilful intent and to intentional or grossly negligent violation of material contractual obligations. N&A shall not be liable for direct damage, in particular not for loss of profit, except for any intentional or grossly negligent acts of its legal representatives, officers, or in case of any of its other vicarious agents’ wilful conduct. N&A’s liability shall be limited to the typical damage foreseeable at the time the contract is concluded except in case of N&A’s, its legal representatives’ and officer’s wilful intent or gross negligence.

(3) N&A’s liability to consumers shall generally be limited to wilful intent and gross negligence. N&A shall be liable for any culpable fault of its employees and vicarious agents for a violation of material contractual obligations, for any default of the debtor or any impossibility to perform attributable to N&A. N&A’s liability shall be limited to the typical damage foreseeable at the time the contract is concluded except in case of N&A’s legal representatives’, employees’ and other vicarious agents’ wilful intent or gross negligence.

(4) N&A’s liability for malfunctions of the online portal that are not within N&A’s sphere of influence such as malfunctions of the internet infrastructure caused by national or international network operators or by user errors shall be excluded.

(5) The exclusions and limitations of liability to entrepreneurs or consumers stipulated above shall neither apply in case N&A provided express warranties nor in case of an injury to life, limb or health nor in case there are mandatory statutory provisions.

(6) Payers and Commercial Users shall indemnify and hold harmless N&A from and against any claims asserted against N&A by any third party on the grounds that the contents published by a Payer or Commercial User violate such third party rights or based on the use of the platform. In such case, Payers and Commercial Users shall also pay any and all legal costs (including court costs and costs of legal advice and representation) arising in connection with the defense of such claim. This shall not apply if and to the extent such violation of third party rights is not attributable to the Payer or the Commercial User.

(7) The contents of N&A’s sites were prepared with utmost care. However, N&A cannot guarantee the correctness, completeness and up-to-datedness of such contents.

(8) As a service provider, N&A is responsible for its own contents on the sites of the online portal in accordance with general statutory provisions. N&A shall not be obliged to monitor third party information transmitted or stored by Payers or Commercial Users or to research any circumstances indicating illegal activities. The obligation to delete or block the use of data in accordance with generally applicable laws shall remain unaffected thereby. However, liability shall only arise as of the time N&A becomes aware of a concrete infringement of rights and fails to take appropriate action.

(9) N&A’s platform contains links to external third party websites, the contents of which are beyond N&A’s control Therefore, N&A cannot assume any warranty for the contents of such third party websites. The provider or operator of the relevant website is responsible for the contents of such linked websites. At the time the link was placed, we reviewed such linked websites as to possible violations of laws. At the time the link was placed, N&A was not aware of any illegal contents, however, it would be unreasonable for N&A to permanently monitor the contents of all linked sites without concrete evidence for a violation of third party rights.

Section 14. Governing law / place of venue

(1) If a Payer or a Commercial User is an entrepreneur in accordance with section 14 of the German Civil Code, the user agreement including these Terms of Use shall be subject to German substantive law. The UN Sales Convention shall be excluded. If a Payer or a Commercial User is a consumer in accordance with section 13 of the German Civil Code, the user agreement including these Terms of Use shall be subject to the laws of the Federal Republic of Germany unless there are mandatory statutory provisions to the contrary, including but not limited to consumer protection regulations.

(2) The exclusive place of jurisdiction for any and all claims resulting from or based on the contractual relationship between N&A and registered Payers and Commercial Users, including but not limited to actions with regard to checks or bills of exchange and for any and all disputes arising between the parties regarding the conclusion, fulfilment or termination of the user agreement, shall be the seat of N&A, provided the Payer or Commercial User is a merchant entered in the commercial register, a public law entity or a special fund under public law.

Section 15. Final provisions / severability clause

(1) N&A reserves the right to change or amend these Terms of Use at any time. Such new Terms of Use shall become effective for new as well as for existing contracts in accordance with the relevant notification of such changes unless the Payer or Commercial User objects to such changed terms within a reasonable period upon receipt of such notification. If the Payer or Commercial User objects within the stipulated period of time, N&A shall be entitled to terminate the contract. Such termination shall become effective as of the time at which such changed terms become effective.

(2) The ineffectiveness of any provision of these Terms of Use shall not affect the effectiveness of the remaining provisions hereof. Such ineffective provision shall be replaced by the corresponding statutory provision.

(Revised: November 2016)

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