TERMS AND CONDITIONS
Terms and Conditions
Last updated: August, 2021
These are the terms and conditions (the "Terms") of MYCB1 Group B.V., and its affiliates (“MYCB1”), having its office at Watteaustraat 5-2, 1077 ZH Amsterdam, The Netherlands, and registered with the Dutch Chamber of Commerce under number 68670788.
These Terms can also be viewed and downloaded from the website at https://mycb1.com/terms-and-conditions/ or may be sent to you (the “User”) upon request.
1. Definitions and interpretation
In these Terms, words written with capitals and not defined elsewhere will have the following meaning. These definitions shall have the same meaning regardless of whether they appear in singular or in plural.
- Affiliate means an entity that controls, is controlled by or is under common control with a party, where "control" means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
- Aletta Service means the personalised website access for the Health Care Provider, accessible via e.g.: http://aletta.mycb1.com.
- App means the mobile app known as “ALETTA” for use by the Patient.
- Device means any hardware device through which a User may access the Websites or App such as a computer, a smartphone or tablet.
- GDPR means the European General Data Protection Regulation (EU 2016/679).
- Health Care Provider means the legal person or natural person acting in the exercise of a business or profession, providing health care services to the User and/or makes use of the Services.
- Intellectual Property means any and all intellectual property rights, whether registered or unregistered, such as but not limited to patent rights, copyrights (including rights in source code and object code), database rights, rights in designs, utility models, trademarks, trade and business names and all associated goodwill, rights in or in connection with know-how and trade secrets.
- Patient means the natural person that makes use of the App and/or other Services (as applicable).
- Services means the services as offered and provided by MYCB1 from time to time, such as but not limited to the App, the Websites, Aletta service, medical treatment medication, clinical or research studies and monitoring services etc.
- User means either the Patient, the Health Care Provider or Website visitor, as applicable.
- Websites means any and all websites owned or controlled by MYCB1, such as: mycb1.com, mycb1.de and mycb1.nl.
These Terms apply to all offers and quotes of, or agreements with MYCB1, as well as to the provision and use of the App, Websites and/or Services (as applicable).
After the Patient has consented to the download and use of the App, the User needs to actively confirm his understanding and acceptance of the applicability of these Terms. By accessing or using the App, the Patient acknowledges and accepts to be bound by these Terms. When the Health Care Provider accepts an offer or agreement from MYCB1, the Health Care Provider confirm his understanding and acceptance of the applicability of these Terms. By accessing or using the Aletta Service or other Service, the Health Care Provider acknowledges and accepts to be bound by these Terms.
MYCB1 does not permit Users under the age of 18 to make use of the App or Services. The User represents that he or she has at least the age of 18 years old.
If any provision of these Terms is held invalid or otherwise unenforceable, the enforceability of the remaining provisions of these Terms will not be impaired thereby. In such event, MYCB1 will replace the invalid provision with a provision that is valid and enforceable thereby taking into account the intention of the original provision.
MYCB1 is entitled to unilaterally amend the Terms at any time, after which the Terms shall apply in the amended form to any and all subsequent offers, quotes or subscriptions, or any subsequent activities in connection with the App, Website and/or Services, and/or any other legal relationships subsequently arising. In the event the User does not wish to accept the amended version of the Terms, the User should immediately inform MYCB1 of its objections in writing, whereby the User may continue its use of the App and/or Services for the remainder of the applicable term under the last applicable version of the Terms. Any update or upgrade of the App, Website or other Service, shall at all times be subject to the most recent version of the Terms. If the User does not wish to accept the amended, most recent version of the Terms, the User should stop using the App, Website or other Service.
These Terms have also been drawn up for the benefit of: (a) all companies which MYCB1 is affiliated with in a group, has or has had a management or cooperation agreement with including their directors and shareholders; (b) all directors, (former) employees and third parties (as well as their heirs) who work/have worked in any way for or were affiliated with or employed by MYCB1; and (c) all third parties MYCB1 may engage in connection with the provision of the App, Websites and/or Services. The Terms apply as a third-party clause as referred to in Book 6, Section 253 of the Dutch Civil Code for the benefit of all persons and legal entities referred to in this clause. As a result they are entitled to invoke the respective provisions in these Terms as the occasion arises.
These Terms may be translated by MYCB1. In the event of any discrepancies between the English version of the Terms and any translated versions, the English text of the Terms shall prevail.
3. Access to Services
In order to access and use the App, the Patient will have a personalised profile in the App including a username and password.
In order to access and make use of the Aletta Service, the Health Care Provider will have a personalised profile in a separate online environment including a username and password.
In connection with providing the App and Aletta Service, MYCB1 has implemented additional security measures such as two-factor authentication, linked to the mobile telephone number of the User. The User is independently responsible to keep the username and password secret. In the event access credentials have been lost or stolen and/or if the User knows or has reason to believe that the App is accessible by unauthorized third parties, the User is required to immediately notify MYCB1.
4. Fees and payment
Where applicable, the User will pay the fee applicable to the Service.
All fees shall always be exclusive of value added tax (VAT) and other levies imposed or to be imposed by the government, unless explicitly indicated otherwise by MYCB1. All fees shall be in euros and must be paid in euros, unless explicitly indicated otherwise by MYCB1.
Unless explicitly indicated otherwise by MYCB1, invoices of MYCB1 shall be due and payable within fourteen (14) days after the invoice date. The User shall never be entitled to suspend any payment or to set off amounts due.
If the User fails to (timely) pay any fees due, the User will incur statutory (commercial) interest on the outstanding amount, without any demand or notice of default being required. If the User continues to fail to pay the amount due after receipt of the demand or notice of default, MYCB1 may assign the claim, in which case the User, in addition to the total amount due at that time, will also be obliged to pay all judicial and extrajudicial costs, including all (legal) costs of third parties.
If the User fails to (timely) pay the fees due, MYCB1 also has the right to suspend or limit the User’s access to the Services or part thereof until the outstanding amounts have been fully made or proper security has been provided.
If the User consists of more than one natural- or legal persons, or if the Services provided by MYCB1 are for the benefit of several natural- and/or legal persons, each of these persons shall be joint and severally liable in respect of payment of the amounts due.
5. App Use
The User shall not use the App, Websites or Service in any way that causes, or may cause, impairment of the availability or accessibility of the App, Websites or Service or damage to the App, Websites or Service or MYCB1.
The User furthermore warrants and guarantees:
- not to use the App, Website or Service for other purposes than the intended use;
- not to use the App, Website or Service (or part thereof) for any illegal, fraudulent or unauthorized purpose;
- not to sublicense, lease, (re)sell, rent, transfer, distribute, copy, modify, decompile or reverse engineer the App, Website or Service (or part thereof);
- not to conduct or request that any other person or party conduct any load testing or penetration testing in relation to the App, Website or Service;
- not to infringe upon or violate MYCB1’s Intellectual Property in or in connection with the App, Website or Service;
- not to upload or transmit viruses or any other type of malicious or destructive code via the App, Website or Service;
- not to interfere with or circumvent the security features of the App, Website or Service (or part thereof).
The User acknowledges and accepts that MYCB1 retains the right to remove any information or content that is deemed - to MYCB1’s sole discretion - in violation of these Terms, and in particular the warranties and prohibited uses as stipulated above. MYCB1 also has the right to immediately suspend or terminate the User’s access to and use of the App, Website or Service in the event of such violation.
MYCB1 reserves the right to modify (including but not limited to adding or removing features), discontinue or terminate the App, Website and/or other Service or any part thereof, for any reason without notice and at any time. MYCB1 cannot be held liable for damages or loss of the User or any third party as a consequence of any such modification, discontinuance or termination.
Unless agreed otherwise in writing, the User is responsible for the management, including control of the settings, the use of the App, Website and/or other Service.
The Patient specifically acknowledges and accepts that MYCB1 shall not be responsible for the way in which the results and insights of the App will be interpreted and used by third parties such as the Health Care Provider. The Patient furthermore acknowledges and accepts that MYCB1 has no control over, and shall not be responsible or liable for: (a) the data that the Patient is uploading, transmitting and/or sharing via the App; (b) the verification and validation of the (data) outcomes, insights, results and visualisations by the Health Care Orovider resulting from the use of the App and the Aletta Service.
Although MYCB1 undertakes to provide and maintain the App, Websites and other Services with the most reasonable care, the accuracy and completeness of the functionalities and data within the App, Websites and other Services cannot be guaranteed. The App, Websites and other Services are provided ‘AS IS’ and ‘AS AVAILABLE’. To the maximum extent permitted under applicable law, MYCB1 expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the App, Websites and Services, including (but not limited to) all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. MYCB1 does not guarantee that the App, Websites or other Service (as applicable) shall at all times function without error or interruption, nor that it will be wholly free from defects, errors and bugs; MYCB1 only guarantees the quality, functionality and availability of the App, Websites and/or other Service if and to the extent explicitly guaranteed by MYCB1 in writing.
To the extent permitted by law, MYCB1 makes no representation or warranty of any kind, express or implied: (i) as to the operation or availability of the App, Websites and/or other Services, or the information, data, content, materials or products included thereon; (ii) that the App, Websites and/or Services will be uninterrupted or error-free; or (iii) as to the accuracy, reliability, or currency of any information or content provided through the App, Websites and/or other Services.
MYCB1 will use commercially reasonable efforts to make the App, Websites and/or other Services available 24 hours a day, 7 days a week, except during planned or unplanned downtime. MYCB1 will use commercially reasonable efforts to inform the User of the downtime in advance, if and when possible. For the avoidance of doubt, downtime caused directly or indirectly by (i) a force majeure event, (ii) failure of the User's computer systems or networks, (iii) any breach by the User of these Terms, or (iv) any scheduled maintenance in accordance with these Terms or service level agreement (as applicable), shall not be considered a breach of this Agreement.
MYCB1 may at any time (temporarily) suspend or limit the use or availability of the App, Websites or other Services or part thereof, insofar this is necessary to execute maintenance or implement updates, upgrades or new releases of the App, Websites or Services or functionalities in connection therewith. MYCB1 undertakes commercially reasonable efforts to inform the User of such suspensions in advance, if and when possible. A (temporary) suspension or limitation of the App, Websites or other Service shall not create any claim or right to compensation or refund(s) (if applicable) for the User against MYCB1.
7. Intellectual Property
All Intellectual Property in and related to the App, Websites and/or other Services are exclusively vested in MYCB1 or its licensors. The User only acquires those rights of use that are explicitly granted by MYCB1.
All rights of use granted to the Patient in relation to the App, to the Health Care Provider in relation to the Aletta Service, or as agreed otherwise with MYCB1, shall be non-exclusive, non-transferable and non-sublicensable and limited to the terms and conditions as specified by MYCB1.
The User is prohibited from removing or amending any indications or credits of Intellectual Property or confidentiality from the App, Websites, Aletta Service, data files, documentation or materials as disclosed by MYCB1.
All confidential information received by the User or MYCB1 (as applicable) shall be held in confidence and not be disclosed or used except to the extent that such disclosure or use is reasonably necessary to perform any of the Services or obligations under these Terms, or as explicitly permitted under these Terms.
Confidential information within the meaning of this clause shall include information, materials or data (in writing, orally or electronically) relating directly or indirectly to the User, MYCB1, the App, Websites and/or other Service, including without limitation to financials, reports, analyses, studies, methods, methodologies, designs, drawings, Intellectual Property, algorithms, software, codes (including source codes), computer programs, offers, presentations, technical or business information, financial statements, business plans, User information, processes, formulas or specifications, and/or any other information that is marked “confidential”, “secret” or similar designation which indicates the confidential nature thereof.
The confidentiality terms in this clause shall not apply to the disclosure of information, that: i) is or has become publicly available without breach of the confidentiality provisions; ii) has been or later is rightfully developed without use, directly or indirectly of the confidential information, or obtained from independent sources free from any duty of confidentiality; iii) is required by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body.
Upon termination of the Service, regardless of the reason thereof, any confidential information will be destroyed without withholding any copies thereof, unless statutory provisions (e.g. financial administration) require a longer retention in which event these security and confidentiality measures shall continue to be applicable.
9. Limitation of liability
To the maximum extent permitted by applicable law, the total aggregate liability of MYCB1 due to an attributable failure in providing the App, Website or other Service or due to any other reason whatsoever, explicitly including any guarantees or indemnification obligations, shall be limited to the compensation of direct damages only and not exceeding i) the sum of fees (excl. VAT) received by MYCB1 from the User through use of the App, Website or other Service, or ii) EUR 250, whichever amount is higher. MYCB1's liability will furthermore under all circumstances be limited to the amount actually paid out by the liability insurance as a result of the claim in question.
To the maximum extent permitted by applicable law, in no event shall MYCB1 be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, arising out of or in any way related to the use of or inability to use the App, Website or other Service or otherwise in connection with any provision of this Terms, even if MYCB1 has been advised of the possibility of such damages. Also MYCB1’s liability for the damage, destruction or loss of data, or for the (temporary) unavailability of the App, Website or other Service due to maintenance by MYCB1, is excluded.
The exclusions and restrictions referred to in this clause will not apply if and in so far as the damage or loss are the result of an intentional act or gross recklessness by the management of MYCB1.
MYCB1 is not obliged to meet any obligation pursuant to these Terms if MYCB1 is prevented from doing so as a result of an event that is beyond its control (“force majeure”). MYCB1 shall never be liable for any damages and costs incurred by the User or any third party which are the result of force majeure. An event of ‘force majeure’ will at a minimum include: (i) war, fire, floods, riots and natural disasters, (ii) governmental measures or boycotts, (iii) electricity failure, (iv) faults affecting the internet, computer network, cloud providers or telecommunication facilities, (v) strike actions and (vi) pandemics (e.g. COVID-19 or similar).
Except where performance by MYCB1 is permanently impossible, MYCB1 will only be in default for an attributable failure after it has been given written notice of the default thereby granting MYCB1 with a reasonable term of at least thirty (30) days to remedy the default. The notice of default must contain a comprehensive and detailed description of the breach, in order to ensure that MYCB1 has the opportunity to respond adequately.
A condition for the filing of any claim to damages is always that the User reports the damage to MYCB1 in writing as soon as possible and in any event not later than 10 (ten) days after the damage occurred. Claims for damages against MYCB1 shall in any event lapse by the mere expiry of six (6) months after the damage occurred, unless User has filed its statement of claim for such damages with the applicable court before the last day of that six (6) months period.
10. Governing law and competence
These Terms are governed exclusively by the laws of the Netherlands.
To the extent permitted under applicable law, any disputes that may arise between MYCB1 and the User from or in connection with these Terms, and cannot be settled amicably, shall be exclusively brought before the competent court of Amsterdam, The Netherlands.