Terms of Use
Status: June 2024
1. Scope
1.1 These terms of use (" Terms of Use ") apply to the use of the website with the domain probatix.de and all subdomains (" myProbatix portal ") by persons who register on the myProbatix portal (" Users "), and regulate the conditions under which Probatix Health GmbH, registered in the commercial register of the Charlottenburg District Court under HRB 05737 B, Bismarckstr. 10-12, 10625 Berlin, represented by the managing director Dr. Daniel Werner (" Probatix "), currently and in the future provides services to users via the myProbatix portal. The Terms of Use become part of the contract concluded between Probatix and the user regarding the use of the myProbatix portal (" User Agreement ").
1.2 The terms of use also apply to all blood, urine, stool and other examinations of human body materials (collectively " examinations " and individually " examination ") that are carried out on users by service providers cooperating with Probatix (e.g. doctor's offices, medical care centers, pharmacies, laboratories, collectively and individually " cooperation partners ") and that are booked and/or processed via the myProbatix portal. The terms of use become part of the contract concluded between the respective cooperation partner and the user regarding the conduct of the examination (" examination contract ").
1.3 These terms of use also apply to the services offered by Probatix Home test kits . In this case, Probatix is the provider and is responsible for providing, instructing and commissioning the evaluation of the tests.
1.4 The terms of use in the version valid at the time of conclusion of the user agreement and the investigation agreement shall apply.
1.5 Differing, supplementary or conflicting terms and conditions of the user are not valid and do not form part of the user agreement or an investigation agreement. This also applies if the user refers to his terms and conditions to Probatix and/or a cooperation partner and Probatix and/or a cooperation partner do not expressly object to the user's terms and conditions.
1.6 Other offers from Probatix and its cooperation partners are not subject to these terms of use. The same applies to the services offered by Probatix for its cooperation partners.
2nd conditions and authorization for use
2.1 The user is only entitled to use the myProbatix portal and to request an examination if he or she agrees to the terms of use. By setting up a user account on the myProbatix portal and by commissioning an examination from a cooperation partner, the user declares his or her agreement to the terms of use. If a user does not agree to the terms of use, he or she is prohibited from setting up a user account on the myProbatix portal and commissioning an examination.
2.2 Only users who are 18 years or older are permitted to use the myProbatix portal and to take part in an examination. The use of the myProbatix portal and/or the use of examinations by underage users is also excluded if the legal representative has consented to the conclusion of the user agreement and/or an examination agreement or if consent is not required by law. False information about age constitutes an important reason that entitles Probatix to extraordinary termination of the user agreement without notice.
3. Services of Probatix
3.1 The user is only entitled to use the myProbatix portal and to request an examination if he or she agrees to the terms of use. By setting up a user account on the myProbatix portal and by commissioning an examination from a cooperation partner, the user declares his or her agreement to the terms of use. If a user does not agree to the terms of use, he or she is prohibited from setting up a user account on the myProbatix portal and commissioning an examination.
3.2 Only users who are 18 years or older are authorized to use the myProbatix portal and to take part in an examination. The use of the myProbatix portal and/or the use of examinations by underage users is also excluded if the legal representative has consented to the conclusion of the user agreement and/or an examination agreement or if consent is not required by law. False information about age constitutes an important reason that entitles Probatix to extraordinary termination of the user agreement without notice.
3.3 Probatix makes every effort to ensure the availability of the myProbatix portal. However, Probatix is not obliged to guarantee the constant and uninterrupted availability of the myProbatix portal. In particular, necessary security and maintenance work or technical faults can lead to the myProbatix portal being temporarily unavailable without the user having any claims against Probatix and/or a cooperation partner. The user is responsible for Internet access and the condition of the hardware and software required to access the myProbatix portal.
3.4 Probatix is entitled to further develop the design of the myProbatix portal, including its functionalities and contents, or to discontinue the myProbatix portal.
3.5 The user must return the test kit for evaluation within 90 days of booking to ensure a reliable analysis. After this period, the right to evaluation expires.
4th services of the cooperation partners
4.1 The cooperation partners carry out the examination. The examinations involve examinations of the user's body material (" sample ") for specific values. If individual values to be determined can be selected when ordering the examination, the user makes the choice within the scope of the examination spectrum offered by the cooperation partner. However, the user has no right to expect a cooperation partner to offer a specific examination.
4.2 The cooperation partner selected by the user takes the sample from the user (e.g. venous blood, capillary blood) or, if the sample is taken by the user himself (e.g. capillary blood, stool, urine, hair), receives the sample from the user (“ sample collection ”). The sample is taken on the premises of the cooperation partner or at another location. If the value determination does not have to be carried out using laboratory diagnostics (see section 4.3), the cooperation partner evaluates the sample and makes the test results available to the user via the myProbatix portal. The user has no right to have the sample taken by a specific employee of the cooperation partner. It is the user’s responsibility to inform the cooperation partner of any relevant previous illnesses, allergies or medication intake when taking the sample.
4.3 If a laboratory diagnostic examination of the sample is required to determine the value, the laboratory diagnostics are carried out by a laboratory medical cooperation partner (“ laboratory ”). This analyzes and evaluates the sample and makes the laboratory results available to the user via the myProbatix portal. The laboratory is selected by Probatix. The user has no right to have the laboratory diagnostics carried out by a specific laboratory, regardless of whether the laboratory is a cooperation partner or not. If the user insists that the sample be analyzed and evaluated by a laboratory of his choice, the examination contract ends without the need for termination.
4.4 The examination is carried out at the user's request. The user acknowledges that the examination cannot replace medical advice and treatment and that a doctor should be consulted in the event of specific complaints.
4a. Services of Probatix as a home test provider
4a.1 For users who do not have a Probatix partner nearby or who wish to carry out the sample collection at home, Probatix offers home test kits.
4a.2 Probatix provides the user with a home test kit that contains all the necessary materials and instructions for taking the sample. The user takes the sample independently at home and then sends the sample to the laboratory specified by Probatix.
4a.3 The sample is analyzed and evaluated in an accredited laboratory. The results are made available to the user via the myProbatix portal.
4a.4 The use of the home test kit is subject to the same terms of use and data protection provisions as the use of the services by cooperation partners.
5th registration/conclusion of contract
5.1 The use of the myProbatix portal and the use of an examination require that the user registers on the myProbatix portal and that Probatix sets up a user account for the user on the myProbatix portal (“ registration ”). This also applies to examinations that the user takes spontaneously on site at the cooperation partner without prior booking of an appointment for sample collection (“ sample collection appointment ”) via the myProbatix portal (“ walk-in examinations ”).
5.2 Registration is as follows:
5.2.1 The user (i.) enters his first and last name, date of birth, gender, contact details (address, telephone number), a valid email address to which the user has access and a password in an input mask on the myProbatix portal, (ii.) confirms that he agrees to the terms of use and has read the data protection information, and (iii.) clicks the "Registration" button. This causes a registration request to be sent to Probatix.
5.2.2 After receiving the registration request, Probatix will send the User an email with a confirmation link to the email address provided by the User.
5.2.3 If the user clicks on the confirmation link, Probatix will activate the user account.
5.3 When the user account is activated, the user agreement is concluded between Probatix and the user. This completes the setup of the user account.
5.4 In the case of walk-in examinations, the user authorizes the cooperation partner to represent him/her during registration with Probatix.
5.5 Probatix is neither obliged to generate a confirmation link nor to activate the user account and can refuse registration without giving reasons.
5.6 When registering, the user is obliged to provide complete and correct information. In particular, he is obliged not to use a false identity that could deceive Probatix or a cooperation partner, and not to provide the identity of another person. Probatix is entitled to verify the user's identity itself or have it verified by a specialized third party, in particular to request that the user send a copy of his identity card or other identification document.
5.7 In the event of a change to his data, the user undertakes to immediately update the data provided during registration by changing the data in his user account or by sending Probatix an email with the changed data.
5.8 Booking an examination offered via the myProbatix portal is as follows:
5.8.1 The user (i.) selects a cooperation partner, the values to be determined and the sampling date in his user account, (ii.) confirms that he agrees to the terms of use, consents to the processing of his data, wants to receive the examination as a self-payer service, authorizes Probatix to conclude the examination contract with the laboratory depending on the type of examination, and (iii.) clicks the "Book with payment" button. This causes an appointment booking request to be sent to Probatix. Probatix forwards the appointment booking request to the cooperation partner.
5.8.2 If the sampling date requested by the user is free, Probatix will confirm the sampling date for the cooperation partner by email to the email address provided by the user during registration.
5.9 With the confirmation of the sampling date, the examination contract is concluded between the cooperation partner and the user.
5.10 In the event that the examination selected by the user requires a laboratory diagnostic examination of the sample, the user authorizes Probatix to represent him in concluding the examination contract with the laboratory; Probatix is entitled to grant sub-authorization. The examination contract between the laboratory and the user is concluded at the latest when the sample is handed over to the laboratory.
5.11 Probatix and the cooperation partner are not obliged to accept the appointment booking request and can refuse to conclude an examination contract without giving reasons.
5.12 The user can only book sampling appointments that are shown as "free" in their user account. The user is not entitled to a specific appointment. Confirmed sampling appointments are binding for the user and must be attended by the user. The user can cancel or change a sampling appointment at any time via their user account. If the user does not attend a confirmed sampling appointment without canceling the appointment at least 24 hours in advance via the myProbatix portal, Probatix is entitled to temporarily block the user's user account or to terminate the user agreement with the user without notice. Furthermore, the cooperation partner is entitled to demand a cancellation fee of 50% of the examination fee; this does not apply if the user did not attend the sampling appointment through no fault of their own.
5.13 The cooperation partner is entitled to cancel a sample collection appointment for important reasons. An important reason exists in particular if employees of the sample collection point are ill or are unexpectedly absent for other reasons. In this case, the user will receive a full refund of the examination fee paid when booking the sample collection appointment.
5.14 If the user accesses the myProbatix portal via the website of a cooperation partner (subdomain of the cooperation partner), he can register and book the sample collection appointment in one step.
5.15 In the case of a walk-in examination, the examination contract between the cooperation partner and the user is concluded, in deviation from section 5.9, as soon as the cooperation partner begins taking the sample.
5.16 The user can access the terms of use when concluding the contract and save them in a reproducible form. Probatix saves the terms of use and makes them available to the user by email upon request.
5.17 The user agreement and investigation contracts can only be concluded in German.
6th right of withdrawal
6.1 If the user concludes an examination contract via the myProbatix portal with a non-medical cooperation partner (e.g. pharmacy), the user has a right of withdrawal in accordance with the following provisions.
6.2 The user has the right to withdraw from an examination contract within fourteen days without giving reasons. The withdrawal period is fourteen days from the day the contract is concluded. In order to exercise the right of withdrawal, the user must inform the cooperation partner, represented by Probatix,
Probatix Health GmbH,
Bismarckstr. 10-12,
10625 Berlin,
by means of a clear statement (e.g. a letter sent by post, fax or email) of his decision to withdraw from the examination contract. The user can use the sample withdrawal form provided at https://drive.google.com/file/d/17m3yrg0kaofcyj0OIKCkXxF7mbKTeYgF/view?usp=sharing , but this is not mandatory. To meet the withdrawal period, it is sufficient for the user to send the notification of exercising the withdrawal period before the withdrawal period has expired.
6.3 If the user cancels the investigation contract, the cooperation partner must refund all payments received from the user immediately and at the latest within fourteen days from the day on which the cooperation partner, represented by Probatix, received notification of the user's cancellation of the investigation contract. The same means of payment that the user used for the original payment will be used for this refund, unless something else was expressly agreed with the user; under no circumstances will the user be charged any fees for this refund.
6.4 The right of withdrawal expires when the cooperation partner has fully carried out the investigation if the user has (i.) expressly agreed before the start of the investigation that the cooperation partner begins to carry out the investigation before the expiry of the withdrawal period, (ii.) has transmitted the consent on a durable data carrier, and (iii.) has confirmed his knowledge that his right of withdrawal expires when the cooperation partner has fully fulfilled the contract.
6.5 We would like to point out that the home blood tests are sealed goods that cannot be returned for reasons of health protection and hygiene if the seal has been removed after delivery. The right of withdrawal is then excluded in accordance with Section 312 g Paragraph 2 No. 1 of the German Civil Code (BGB). If the seal has not been removed, the right of withdrawal applies as described in 6.1 - 6.4.
7th Remuneration and Payment
7.1 The cooperation partners determine the remuneration for each examination (“ examination remuneration ”) independently and under their own responsibility. In deviation from this, the examination remuneration is based on the German Medical Fee Schedule (GOÄ) in the version valid at the time the examination contract is concluded if the examination is carried out by a medical cooperation partner.
7.2 The examination fee for examinations offered via the myProbatix portal must be paid when booking the examination via the myProbatix portal (prepayment). Probatix is authorized by the cooperation partners to accept payments from users on behalf of the cooperation partners. Payment is only possible via an online payment service and is made at the user's discretion via PayPal, credit card, SEPA direct debit and bank transfer. There are no other payment options. Probatix is entitled to offer additional payment options on the myProbatix portal or to remove individual payment options at any time.
7.3 Deviating from clause 7.2, the fee for the examination is to be paid to the cooperation partner upon receipt of an invoice from the latter if the examination fee is based on the German Medical Fee Schedule (GOÄ).
7.4 The examination fee for walk-in examinations must be paid to the cooperation partner in cash when the examination is commissioned or by another payment option offered by the cooperation partner (e.g. direct debit, credit card, etc.).
7.5 The examinations are self-payer services. This means that the costs of the examinations are generally not reimbursed by the funding body (health insurance, assistance, etc.). The user is free to clarify with his funding body whether the latter will reimburse the costs of the examination. If the funding body refuses to cover the costs, this does not affect the cooperation partners' claim for compensation against the user.
8th General obligations of the user
8.1 The user is obliged to comply with the terms of use.
8.2 The user is also obliged to create a secure password for his user account when registering, not to pass it on to third parties and to keep it safe from third-party access. He is obliged to inform Probatix immediately if he becomes aware that the password is being used by third parties without authorization. Probatix is entitled to block the user account if there is reasonable suspicion that unauthorized third parties are using the password. Probatix will inform the user of this and assign him a new password.
8.3 The user is obliged not to infringe the rights of third parties or violate any legal provisions when using the myProbatix portal. If the user violates this, he is obliged to indemnify Probatix and cooperation partners from claims for damages and reimbursement of expenses by third parties that are based on the user's violation of rights. The indemnification obligation also includes the costs of legal defense for Probatix and/or a cooperation partner.
8.4 The user is obliged not to use the myProbatix portal for commercial purposes. The user is prohibited from endangering or impairing the usability of the myProbatix portal through improper use. In particular, when using the myProbatix portal, the user may not send any data or save it on a Probatix data storage device that, due to its type, nature, size or number, is likely to impair the functioning of the computer systems of Probatix or third parties or to infringe the rights of third parties (e.g. viruses, spyware, spam emails, etc.).
8.5 The user is obliged to make backup copies of all content contained in his user account, in particular medical documents, on his own computer system.
9th contract term and termination
9.1 Usage agreements between Probatix and users as well as investigation agreements between cooperation partners and users begin upon their conclusion and run for an indefinite period.
9.2 Either party may terminate contracts within the meaning of clause 9.1 in accordance with the following provisions:
9.2.1 Users may terminate user agreements at any time without notice.
9.2.2 Probatix may terminate user agreements with two weeks’ notice.
9.2.3 Users can terminate testing contracts at any time without notice. If a user terminates a testing contract after the sample has been taken, the respective cooperation partner is entitled to demand a portion of the remuneration from the user that corresponds to the services provided to date, unless the cooperation partner gave cause for the termination through its conduct in breach of contract.
9.2.4 Cooperation partners can terminate testing contracts with two weeks' notice. Ordinary termination is excluded once the sample has been taken.
9.3 The right to extraordinary termination for good cause remains unaffected. Good cause exists for Probatix in particular if the user violates essential provisions of the terms of use.
9.4 If Probatix is notified of the termination of an investigation contract, Probatix acts on behalf of and with the authority of the cooperation partner. The rejection of the termination is excluded according to Section 174 Sentence 2 of the German Civil Code (BGB).
9.5 Any termination must be in text form at least to be effective, whereby the user (i.) can also terminate the user agreement by deleting the user account and (ii.) can also terminate the examination agreement by cancelling the confirmed appointment in his user account.
9.6 Termination of the User Agreement by the User or Probatix will result in (i.) the User no longer being able to access his/her User Account and (ii.) all User Data and all medical documents contained in the User Account being deleted or anonymized, unless Probatix is legally obliged to retain them.
10th Liability
10.1 The contractual and non-contractual liability of Probatix, regardless of the legal basis, for itself, its legal representatives and its respective vicarious agents – subject to Section 10.2 – limited as follows:
10.1.1 In the event of a slightly negligent breach of a material obligation arising from the user agreement (“ cardinal obligation ”), Probatix’s liability is limited to the amount of damage that was foreseeable and typical for the contract at the time the contract was concluded. Cardinal obligations are those obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance a contracting party can regularly rely.
10.1.2 Furthermore, Probatix is only liable for intentional and grossly negligent breaches of duty arising from the user agreement.
10.2 The limitations of liability in Section 10.1 do not apply in cases of mandatory statutory liability, in particular in the case of assumption of a guarantee or in the case of culpable injury to life, body or health.
10.3 Probatix is not liable under any circumstances, regardless of the legal basis, for any damages that are based on a contractual and/or non-contractual breach of duty by the cooperation partner, in particular in the event of a treatment error. The activities of the medical cooperation partners are covered by professional liability insurance.
10.4 Probatix does not guarantee the error-free operation of the myProbatix portal.
10.5 Probatix is not liable for data loss if and to the extent that the data loss could have been avoided by data backup precautions that were reasonable for the user.
11th data protection
11.1 The privacy policy at https://probatix.de/rechts/my-probatix-datenschutzregulations
12th Electronic Communication
12.1 Communication between Probatix and the user as well as between cooperation partners and the user can take place in electronic form (e.g. by email or via a corresponding chat function). If the user does not agree to this, use of the myProbatix portal is not possible.
13th Changes to the Terms of Use
13.1 Probatix is entitled to change the terms of use in part or in full at any time with effect for the future, provided that users are not unreasonably disadvantaged. This is particularly the case if the changes do not result in economic disadvantages for users, such as when the terms of use are adapted to changed functionalities of the myProbatix portal. Such changes will take effect for a user with whom a user agreement already exists if (i.) Probatix notifies this user of the changes in text form at least four weeks before the time of the change, (ii.) Probatix indicates in the notification that the changes will take effect if the user does not object at least in text form before the specified time of change, and (iii.) Probatix does not receive an objection from the user in at least text form by the specified time of change. The changes are deemed to have been accepted by the user in any case if he or she continues to use the myProbatix portal after the changes come into effect.
13.2 In the event of an objection by a user, Probatix is entitled to terminate the user agreement without notice. The user cannot assert any claims against Probatix as a result of this.
14th Applicable Law, Final Provisions
14.1 The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods. The application of mandatory legal provisions of another country of the European Union in which a user has his or her habitual residence upon conclusion of the user contract and/or the investigation contract remains unaffected by this choice of law.
14.2 Should individual provisions of the terms of use, including this provision, be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The respective statutory provisions shall take the place of the invalid or missing provisions. However, if this would represent an unreasonable hardship for one of the contracting parties, the contract shall be invalid in its entirety.
14.3 The terms of use in their current version can be found at https://probatix.de/legal/my-probatix-usage-conditions Older terms of use will be made available to the user by email upon request.
15th online dispute resolution
15.1 The EU Commission offers the possibility of online dispute resolution on an online platform operated by it. This platform can be accessed via the external link http://ec.europa.eu/consumers/odr/ Probatix and its cooperation partners are not obliged to participate in dispute resolution proceedings and do not participate in them voluntarily.
