1.1. imito AG (hereinafter also referred to as "Provider") offers healthcare professionals concerned with wound care documentation (physicians, nurses, wound specialists, etc.) in a clinic, small practices or independent practice (hereinafter referred to as "User") a technical solution ("App", “imitoWound”), by means of which the User can document patients wounds in an easy, secure and privacy-compliant way.
1.2. The App merely provides Users with a technical infrastructure to store and share patient data in a secure manner and to communicate about other related processes and explicitly does not represent a diagnostic, consulting or other medical treatment tool.
2.1. The App allows Users to do the following activities: visual wound documentation (photo documentation), document related wound status and therapy, wound measurement, communication and collaboration between healthcare professionals (sharing of documentation), management of documented artefacts (photos: manual tagging & search). MDR & FDA statement: https://imito.io/mdr-fda-statement.
2.2. The app is not intended for patients, nor for private non-business use. Such uses are not permitted.
2.3. Unless otherwise stated, use is subject to a fee. The prices result from the respective offered and selected product packages or tariffs.
3.1. The App is made available for iOS devices via the Apple App Store and for Android devices via the Google Play Store (those apps platforms are hereinafter referred to as "App Store").
3.2. The App may be installed on all supported iOS devices (Smartphones, Mobile devices, Tablets) and on all supported Android devices (Smartphones, Tablets) that meet the minimum technical requirements specified by the provider. Such minimum technical requirements may change over time due to technological advancements. The App can only function as intended if the current version of the minimum technical requirements are met and all updates or new versions of the App published or offered by the Provider are installed.
4.1. The User undertakes to comply with all these Terms & Conditions, as well as all associated agreements and contracts, and to pay the fees owed for the use of the App.
4.2. The User further undertakes to use the App only as intended and in accordance with the law.
4.3. The User recognizes and accepts that the intended use of the App may provide for the handling of personal data of special categories in accordance to Art. 9 GDPR (so-called "sensitive data") and therefore undertakes to comply with all relevant regulations, in particular but not exclusively:
4.4. to obtain the possibly required consent to the collection and processing of personal data from the persons concerned in a legally compliant manner;
4.5. to prevent unauthorized and unlawful access to the contents exchanged, stored or uploaded via the App. This includes, for example, the choice of secure passwords, their regular change and secure storage; the use of protected Internet connections; the use of technical protection devices on the equipment used (e.g. screen locks, privacy films, etc.).
4.6. The User further undertakes, if required by law, to sign and comply with the agreement provided by the provider for the processing of personal data on behalf of the User in accordance with Art. 28 GDPR ("Data Processing Agreement" or "DPA"). In such cases, the contract governed by these Terms and Conditions is subject to the condition precedent that the aforementioned DPA is also effectively concluded.
4.7. The User recognizes and accepts that the App is designed as a secure means of patient wound documentation in a secure and mobile way, and it should not be used for any other not-legitimate purposes.
5.2. Furthermore, Users can create patient profiles or access existing patient profiles already created before.
6.1. Only persons legally capable to enter into agreements on their own behalf shall be permitted to register with the App.
6.2. By registering, the User confirms his/her knowledge and the unlimited recognition of the content of these Terms & Conditions as well as that all registration data is true, accurate, current, and complete, and he/she will keep all registration information up to date.
6.3. Following successful registration, the User (then the “Registered User”) can log on to the App by entering his/her email address and the chosen password.
7.1. The service provision will start with a free trial for a fixed period after which the trial shall convert into a Subscription.
7.2. To prevent a trial from converting into a subscription, the User shall need to terminate the trial at least 24 hours before the end of the trial period on the App Store.
8.1. In order to use the Service, the User must (i) be a Registered User, and (ii) pay the stipulated price, including applicable VAT, if any, and any other fees or amounts associated with the Service, by credit card, via the App Store, or any other form of payment accepted by imito AG (the “Subscription”).
8.2.1. Payment is made in advance for each subscription period. In other words, the User can select the subscription period that best satisfies the User’s needs to access the Premium Services. Once the User signed up and paid for the Subscription, the selected validity period will be associated with the User’s account.
8.2.2. Payments for the entire term of the Service shall be due immediately upon invoicing. Payment may be made using different online payment systems. If imito AG is unable to collect any fees from an account designated by the User due to lack of funds, the User shall bear all costs arising therefrom, including bank charges related to any debit entries or similar charges. imito AG may deliver invoices and payment reminders to the User by email.
8.2.3. When the Subscription period expires, the User’s credit card will be charged automatically with the standard subscription price which was valid at the time of Subscription and the User’s Subscription will be renewed for the same period of time unless the User cancels the Subscription, at least prior to the expiration of the User’s current Subscription. The standard subscription price can be viewed on the App and in the App Store.
8.2.4. The User may cancel the Subscription to imitoWound App by initiating the cancellation directly through the App Store (according to the App Store terms of service). Unless otherwise provided in these Terms & Conditions, imito AG will not refund previously paid amounts.
8.2.5. Subject to Section 8.2.3, for lack of a User’s cancellation of such User’s Subscription, each Subscription period ends only upon expiration of the agreed-upon time period, and regardless of the User’s actual use of the Service during such period. Each User can check the length of the current Subscription period by viewing such User’s App Store account information.
9.1. Each User shall have the right to terminate the use of imitoWound App at any time via his/her account settings. Such termination shall be confirmed to the User.
9.2. Additionally, imito AG reserves the right to terminate a User’s service provision for important reasons, such as due to gross breaches of the User’s obligations as set forth in these Terms & Conditions and ancillary agreements.
10.1.1. The App is installed independently on the devices used by the User, while all content uploaded to the App or exchanged via the App is hosted on the Cloud. Personal data uploaded, transmitted and shared via the app is hosted on the Cloud. These servers are located in locations within the EU or EEA. If personal data is to be hosted on servers outside the aforementioned territorial area, the Provider shall take the legally required measures to ensure that the transmission and storage of personal data complies with data protection law in accordance with Art. 44 et seq. GDPR.
10.1.2. In the event of termination - for whatever reason - of the contract between the User and the provider, the provider shall keep all content, information and (personal) data uploaded by the User available for retrieval by the User for a further 60 days after termination. After expiry of this period, the aforementioned content will be irrevocably deleted or anonymized in accordance with data protection regulations. Legal storage obligations or rights to which the provider is subject or to which the provider is entitled remain unaffected.
10.1.3.1. Where required by law, the provider concludes contract processing agreements with its own contractors in accordance with Art. 28 GDPR.
10.1.3.2. Data Processing Agreement: The User can ask to receive a signed copy of the Data Processing Agreement (DPA): https://imito.io/imitowound-data-processing-agreement by contacting imito AG at firstname.lastname@example.org.
11.1. The offer from the provider does not constitute medical advice, nor does it replace such advice. The User is merely provided with technical means for collecting (documentation tool) and sharing patient data in a secure manner (communication tool).
11.2. Every subscription is intended to be personally attached to a legal person and is not transferable. It is not allowed to use a single subscription, by any means, on more than one device not belonging directly to the subscriber.
11.3. imito AG does not claim or warrant that the imitoWound App will be available at all times, or that it and the necessary hardware and software will be completely free from errors.
11.4. Claims of the User for damages are excluded. Excluded from this are claims for compensation for the typical, foreseeable damage of the User resulting from injury to life, body, health or from the violation of essential obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the provider, his legal representatives or vicarious agents. Cardinal obligations are those whose fulfilment is necessary to achieve the objective of the agreement.
11.5. The above restrictions also apply in favour of the legal representatives and vicarious agents of the provider if claims are made directly against them.
12.1. The app may only be used in good faith and for the purposes for which it is intended. In particular, the following actions are not permitted:
12.1.1. use of the App in an abusive, fraudulent, illegal or inappropriate manner or for any other purpose that is not related to the services of imitoWound App;
12.1.2. reconstruction or decompilation of parts of the App;
12.1.3. copy, collect, duplicate or distribute the content or information provided on the App;
12.1.4. misuse the App in a manner that imposes an unreasonable burden on the infrastructure or causes it to malfunction;
12.1.5. violate or attempt to violate any security measures implemented in the App.
12.2. Users further agree to only share and/or transmit content via the App that they have already stored, secured or retained by other means independent of the App. The provider shall only be liable for data loss in accordance with the clauses of these terms and conditions and shall in no case cover the damage incurred by the User due to the disregard of this obligation.
12.3. The Provider is not responsible for performance or security issues encountered with the Service that result from Users’ failure to accept the application of patches or updates that are necessary for the proper function and security of the Service.
12.4. Users undertake to indemnify the Provider from all claims that third parties (e.g. patients) assert against the Provider due to or in connection with the use of the App (e.g. in the case of use that is not in accordance with the intended purpose, the contract or illegal), including the legal costs incurred for defence.
13.1. All rights to the app and its content (e.g. materials, images, designs, texts, logos, software), including any intellectual property rights (copyrights, design trademarks or patent rights), are the exclusive property of the provider. The User acknowledges and accepts that he/she is granted a license to use such content only for the purpose of using the App in accordance with these Terms and Conditions.
13.2. In particular, Users may not sell, copy, transfer, distribute, modify, alter, imitate or exploit App content in any way not expressly permitted by these Terms & Conditions or resulting from the intended use of the App.
13.3. The presentation of this App within third party applications (e.g. by framing) is only permitted with written permission.
13.4. Any use beyond the aforementioned purpose is only permitted with the written consent of the provider.
14.1. The provider reserves the right to change, revise, discontinue or completely withdraw the app or individual app functions at any time.
14.2. Similarly, the Provider reserves the right to change these terms and conditions at any time. In the event of changes to the Terms and Conditions, the User will be informed of the changed Terms and Conditions when accessing the App or directly by email to the address entered during the User account registration. If the User contradicts them, the contract with the provider will be terminated at the next possible date. If the User continues to use the app, the changed Terms and Conditions are considered accepted.
If one or more conditions of this agreement are invalid or ineffective, the remaining ones shall remain unaffected. The Parties shall replace the invalid or ineffective conditions with those that are valid and effective and best reflect the original intention of the parties and, if possible, lead to the same economic result.
16.1. Swiss law is applicable to this Agreement. The state courts in Zurich, Switzerland, shall have exclusive jurisdiction over disputes arising in connection with this Agreement.
16.2. Prior to initiating legal proceedings before the courts, the Parties are bound to conduct mediation in Zurich. No action shall be brought until the mediation has ended unless the defendant refuses mediation. The parties choose the mediator jointly. The costs of the mediation procedure are shared.
16.3. These Terms and Conditions remain binding in the remaining parts even if individual provisions are legally ineffective. Instead of the ineffective regulations, the legal regulations, if any, shall apply. However, if this would constitute an unreasonable hardship for one of the parties, the Terms and Conditions shall become invalid as a whole.