1. eTermin online appointment planner – validity of the Terms of Business
(1) These Terms of Business (hereinafter “Terms”) regulate the contractual agreement between eTermin GmbH, Mättivor 3, 6430 Schwyz for Swiss users or eTermin Ltd, Stylianou Lena 8, 8201 Paphos Geroskipou for non Swiss users (hereinafter “eTermin”) and the user of the eTermin online appointment booking solution (hereinafter “eTermin online appointment booking”), who provides the eTermin online appointment booking as service provider (hereinafter “service provider”) to their customers (hereinafter “end users”).
(2) This agreement shall be valid from the first date on which the service provider uses eTermin online appointment booking. Any prior contractual stipulations between eTermin and service providers shall lose their validity when these Terms come into force.
(3) Any terms of business that deviate from these Terms shall only be the subject of a contractual agreement between eTermin and the service provider if eTermin has previously recognised these terms of business. This shall also apply in the event that eTermin does not expressly reject any contradictory terms of business.
2. Subject of the contract and services
(1) eTermin is an Application Services Provider of the eTermin online appointment booking. eTermin online appointment booking is provided to service providers for use for a limited period of time. Furthermore, service providers are granted any necessary rights for the transfer and use for a limited period of time.
(2) eTermin provides service providers with eTermin online appointment booking in various modules. eTermin online appointment booking enables end users to arrange appointments with service providers via the internet. The exact functionalities of eTermin online appointment booking services are based on the respective modules that are made available to the service provider for use for a limited period of time or can be viewed on the eTermin website.
(3) eTermin retains the right to change the functionalities at any time, which is why visual, technical or other modifications may take place. Changes to functionalities and any associated upgrades to eTermin online appointment booking are automatically subject to these Terms of Business during the term of the respective contract. Changes to the eTermin online appointment booking service do not justify any extraordinary right to termination if the contractual services predominantly remain the same.
(4) The service provider agrees that a notice with a link to the eTermin will be visible on the service provider’s homepage in the event that the eTermin online appointment booking service is integrated. Furthermore, the service provider agrees that end users will be notified by email or SMS when appointments are booked via eTermin online appointment booking for appointment confirmation, reminders, cancellations etc.
(5) The service provider consents to eTermin sending the service provider general information by email. The service provider may object to receiving such emails at any time with future effect. Objections cannot be raised to the sending of emails that are technical or relevant to the system by eTermin online appointment booking.
(6) For support work by eTermin, access to personal customer data may be necessary. The legal basis for this data processing is Art. 6 Para. 1 S. 1 lit. b GDPR. Service provider can deactivate access for support in the eTermin account.
3. Right of use
(1) The service provider receives the ordinary and non-exclusive right of use, limited to the term of the contract, to eTermin online appointment booking using telecommunications and to use the functionalities connected with eTermin online appointment booking via a browser in accordance with Section 2. The service provider shall not receive any additional rights, in particular to eTermin, eTermin online appointment booking or the system software.
(2) The service provider shall not be entitled to use eTermin online appointment booking beyond the scope set out in this contract, to enable third parties to use it or to make it available to third parties. In particular, the service provider shall not be entitled to reproduce, sell or transfer for a limited period of time, in particular rent or loan, eTermin online appointment booking or parts thereof.
(3) For each case in which the service provider culpably facilitates the use of eTermin appointment booking by a third party not specified by the service provider, the service provider shall be liable to pay compensation for damages in the amount of the remuneration that would have been payable during a standard contract term of the minimum contract period of 3 months at the highest remuneration level for a service provider. The service provider retains the right to furnish proof that no damages or a significantly lower level of damages were incurred. eTermin reserves the right to claim further damages.
(4) In the event of an unauthorised transfer of use, the service provider shall provide eTermin with all details for asserting the claims against the unauthorised user on request without undue delay, in particular the user’s name and address.
(5) If the contractual use of eTermin online appointment booking is restricted by third-party property rights without eTermin being responsible for this, eTermin has the right to refuse to perform the services affected by this. eTermin shall inform the service provider of this without undue delay and enable the service provider to access its data in a suitable manner. The service provider shall not be obliged to pay in this scenario. Other claims or rights of the service provider shall remain unaffected.
4. Data protection and data security (Please also see the Privacy statement)
(1) Both parties shall observe the respective applicable data protection provisions and ensure that their employees that work for the company in connection with the contract are obliged to maintain data privacy insofar as this does not already constitute a general obligation.
(2) If the service provider collects, processes or uses personal data itself or via eTermin, the service provider shall be responsible for ensuring that it is entitled to do so in accordance with the applicable provisions, in particular data protection provisions, and, in the event of a breach, shall indemnify eTermin from any third party claims.
(3) Insofar as the data to be processed constitutes personal data, the access and control of this data remains solely with the service provider which uses eTermin online appointment booking.
(4) The software application, server and operating software, as well as other system components of eTermin online appointment booking, are operated in a data centre within the EU.
(5) eTermin takes technical and organisational security precautions and measures in accordance with the current data protection laws.
Contract data processing pursuant to GDPR – EU General Data Protection Regulation
Data processing on behalf of another party, also known as contract data processing, is the collection, processing or use of personal data by a service provider (eTermin) on the instruction of the client (you as our client). It serves to protect the outsourcing of data processing under data protection law. This is regulated in the GDPR within the EU.
You can sign the order processing contract in the eTermin backend in the Manage account > Data Privacy tab after successful registration.
5. Duties and obligations of the service provider
The service provider shall fulfil the duties to which it is subject in order to provide the services set out in this contract. It shall, in particular, pay the
(1) agreed prices by the deadline. In the case of a direct debit that is not redeemed and/or is returned, the service provider shall be obliged to reimburse eTermin the costs it has incurred to the extent to which the service provider is responsible for the event that incurred the costs.
(2) To protect the user and access authorisations, as well as identification and authentication security details, with which it and/or its employees are provided, against access by third parties and refrain from passing these on to unauthorised users.
(3) To ensure that (e.g. when third-party text and data is transferred onto eTermin servers) all industrial property rights and copyright are observed.
(4) To obtain the necessary consent of the respective data subject insofar as the service provider collects, processes or uses personal data within the framework of use of eTermin online appointment booking and no legal permission is applicable.
(5) To refrain from misusing eTermin online appointment booking or allowing it to be misused, in particular to refrain from transmitting information with unlawful or unethical content or making reference to information that promotes sedition, encourages criminal offences or glorifies or trivialises violence, information that could morally endanger children or young people or negatively affect their welfare or damage the reputation of eTermin.
(6) To attempt, either independently or via unauthorised third parties, to access information or data without authorisation to do so, to interfere or with programmes operated by eTermin or to arrange this via a third party or to access data networks by eTermin without authorisation to do so.
(7) To release eTermin from all third-party claims based on unlawful use of eTermin online appointment booking that takes place by them or with its approval or which, in particular, arise from data protection, copyright or other legal disputes associated with the use of eTermin online appointment booking. If the service provider recognises or is in a position to recognise that there is a risk of an infringement of this kind, the service provider shall be obliged to inform eTermin without undue delay. In particular, the service provider is prohibited from publishing materials about the eTermin online appointment booking in a legally violating manner (e.g. due to a violation of copyright, trademark, personal or data protection rights, see also paragraph 3 ff.). The service provider is solely responsible for such actions and releases eTermin from any third-party claims upon first request.
(8) To secure the data transmitted to eTermin on a regular basis and in accordance with the level of risk and to create its own backup copies in order to ensure the data and information can be reconstructed in the event of loss.
(9) To secure its existing data on the system by the point in time the contract expires by downloading it as, after the expiry of the contract, it may no longer be possible for the service provider to access this existing data.
6. Use of eTermin online appointment booking contrary to the contract
(1) In the event the service provider or the employees appointed by it breaches the essential obligations set out in this contract in an unlawful manner, in particular in the event of a breach of the obligations set out in 5.5 and 5.6, eTermin shall have the right to block the access to eTermin online appointment booking and block its data. The access will only be restored once the breach against the essential obligation in question has been remedied on a permanent basis and/or the risk of repetition has been ensured by means of an appropriate declaration to cease and desist with penalty clause being provided to eTermin. In this case, the service provider remains obliged to continue paying the monthly fees.
(2) In the event of a breach of 5.5 and 5.6, eTermin is entitled to erase the data in question.
(3) If the service provider culpably breaches 6.1 and 6.2, the service provider shall be obliged to pay compensation for damages in the amount of € 10,000. The compensation amount may be increased or decreased if eTermin or the service provider is able to furnish proof that a higher or lower level of damages was incurred; the service provider also has the right to furnish proof that no damages were incurred. eTermin reserves the right to claim further compensation for damages.
(4) In the event of an unlawful breach of the obligations set out in 5.5 and 5.6 by the user, the service provider shall provide eTermin with all details for asserting the claims against the user on request without undue delay, in particular the user’s name and address.
7. Payment terms
(1) The monthly rental charges are payable in advance from the date the contract comes into force for the respective term of the contract.
(2) All prices, which are detailed on the eTermin website, are subject to statutory value-added tax in the amount that is applicable on the respective invoice date.
(3) Other fees shall be payable when the service has been provided.
(4) Insofar as no automatic direct debit transfer system has been arranged, the invoice amount must be credited to the eTermin account on the thirtieth day after the invoice date at the latest.
8. Default
(1) During a period of payment default by the service provider, eTermin shall be entitled to restrict access to the eTermin online appointment booking to read-only and/or to block this in full. In this case, the service provider remains obliged to continue paying the monthly fees.
(2) If the service provider defaults on the payment of the fees or a not insignificant part of the fees
for two consecutive months or, in a period
that extends to over two months defaults on the payment of the fees in an amount that reaches the fees payable for two months,
eTermin shall be entitled to withdraw from the contract without observing a notice period and to require the payment of fixed fee damages, which are payable immediately, and amount to half of the remaining monthly fees until the expiry of the standard term of the contract.
(3) The compensation amount may be increased or decreased if eTermin or the service provider is able to furnish proof that a higher or lower level of damages was incurred. eTermin reserves the assert further claims relating to the default on payment.
(4) For cases in which eTermin defaults on the operational provision, the liability shall be determined as set out in Section 9. The service provider is only entitled to withdraw from the contract in the event that eTermin fails to meet an appropriate grace period deadline set by the service provider twice.
9. Liability
(1) eTermin guarantees the annual average of 99.9% provision of the services set out in the contract in accordance with Section 3 of these Terms.
(2) This excludes periods for which the servers cannot be accessed via the internet for technical or other reasons for which eTermin is not responsible (force majeure, third-party fault etc.). Maintenance times for which advance notice of maintenance work was provided do not constitute downtime.
(3) eTermin shall only be held liable for damages to the service provider insofar as the direct damage was caused in an intentional or grossly negligent manner in connection with the use or utilisation of eTermin, its employees, legal representatives or other vicarious agents.
(4) Additionally and primarily, eTermin shall not be liable for slight negligence, with the exception of direct damage to persons. Insofar as legally permissible, compensation for indirect, direct and/or consequential damages, in particular also damages caused by defective products, pure financial losses, lost earnings and third-party damages, is also excluded.
(5) Otherwise, eTermin shall only be liable insofar as it has breached an essential contractual obligation (cardinal duty). In such cases, the liability shall be limited to compensation for foreseeable damages that would typically be expected. For an individual claim, the liability shall be limited to the contract value and, in the event of ongoing remuneration, to remuneration amount per contract month.
(6) The strict liability of eTermin for compensation for defects existing at the point in time of conclusion of the contract is excluded.
(7) The liability according to the provisions of the Product Liability Law (Produkthaftungsgesetz) remains unaffected.
(8) The liability of eTermin in the event of data loss or data restoration shall be limited in all cases in terms of the amount, specifically to the damages that would have also been incurred in the event of regular and proper data backup by the service provider.
10. Force majeure
(1) eTermin shall be released from the obligation to perform the services set out in this contract if and insofar as the non-performance of the services is the result of the occurrence of circumstances of force majeure after the conclusion of the contract.
(2) Circumstances of force majeure shall, for example, be war, strikes, unrest, expropriation, substantial changes in law, storms, floods and other natural disasters, as well as other circumstances for which eTermin is not responsible. These include, in particular, water penetration, power cuts and the interruption or destruction of data lines.
(3) Each contracting party is obliged to inform the other contracting party in written form without undue delay in the event of the occurrence of a case of force majeure.
11. Contract start date and term, termination
(1) If the service provider registers for free demo access, eTermin will provide 30 days of access to eTermin online appointment booking. The Terms of Business shall be valid from this point in time. The demo access shall end regardless of which of the following events occurs first:
- The end of the free demo period on expiry of the 30 days (notice of termination by the service provider is not necessary, 30-day test access expires automatically)
- Order receipt for the rental of an eTermin online appointment booking module by the service provider
During the free demo, the number of bookable appointments (booked online) is limited to 500. In particular, the demo version may not be used to organize registrations for a one-off event (e.g. corona mass test, vaccinations, click & meet, etc.).
Vaccination center operators must consult eTermin before activating the account (go-live).
(2) The minimum rental period (after the free demo access) for the eTermin online appointment booking is 3 months and starts on the date of operational provision.
(3) The contractual relationship may be terminated by both contracting parties with a notice period of 2 calendar weeks at the earliest to the expiry of the contract term on the last day of the calendar month. Otherwise, the contract is extended by the respective selected contract term again.
(4) The service provider may switch to another module of the eTermin online appointment booking service at any time or (de)activate additional packages. In order to do so, a new incoming order must be placed with eTermin. The module that corresponds to the new order, as well as any additional packages, are activated at the start of the following month at the earliest. The fee which increases accordingly is payable from the month that follows the respective activation. If the customer switches to a smaller module or deactivates an additional package, this does not reduce the rental price that has already been paid. The rental fee is only reduced for the following invoice period.
12. Final provisions
(1) The service provider may only transfer the rights and obligations set out in this contract to third parties with the prior written permission of eTermin. eTermin, on the other hand, is entitled to transfer the rights and obligations set out in this contract to a group company within the meaning of Section 15 Stock Corporation Act (Aktiengesetz).
(2) The contractual relationships shall be governed by the law of the eTermin headquarter. The place of jurisdiction is the eTermin location.
13. Severability clause
Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after the conclusion of the contract, this shall not affect the validity of the remaining parts of the contract. The invalid or unenforceable provision is to be replaced with a valid and enforceable provision that comes as close as possible to the economic purposes pursued by the contracting parties with the invalid and/or unenforceable provision. The above provisions shall apply accordingly in the event any omissions from the contract are found.
12/2021