Scope & Consumer Information
These General Terms and Conditions of Use (hereinafter: "GTC") apply in the version valid at the time of the order to all contracts for the acquisition of an authorisation for the video monitoring and certifications of antigen tests for the direct pathogen detection of the coronavirus SARS-CoV-2 for self-testing (hereinafter: "rapid tests") and other deliveries and services of Chainberry GmbH & Co. KG, Ballindamm 39, 20095 Hamburg, hereinafter: "Chainberry"), which are offered to customers in the context of the video-monitored performance of rapid tests via the website testifly.de or the Testifly app. Deviating terms and conditions of the customers do not apply unless Chainberry has expressly confirmed this in writing.
Agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC.
Duty to inform according to the Consumer Dispute Settlement Act (§ 36 VSBG): Chainberry is neither willing nor obliged to participate in further dispute settlement proceedings before a consumer arbitration board.
If you have any complaints, you can contact our complaints office by e-mail at firstname.lastname@example.org.
Subject matter of the contract, conclusion of the contract and right of withdrawal
Via the website testifly.de and the Testifly app (hereinafter jointly referred to as "testifly"), customers can book the video-guided execution and certification of rapid tests via the Testifly app. The customer can purchase a code either via the website or in the testifly app and redeem it in the testifly app. The client explicitly does not purchase a rapid test kit via testifly.
The presentation on testifly does not constitute a legally binding offer, but merely an invitation to submit an offer (so-called invitatio ad offerendum). When placing an order, the customer makes a binding offer to conclude a contract for the desired services by clicking on the "Order subject to payment" button. Before submitting his contractual declaration, the customer has the opportunity to view these General Terms and Conditions, the cancellation policy and the data protection declaration.
Within the framework of the ordering process, the customer has the possibility at any time to recognise and correct input errors before submitting the contractual declaration by changing his/her details using the mouse or keyboard. The customer can change his personal details as well as remove the desired services from the overview of the selected products or increase or decrease the number of desired services.
In addition, all order details are displayed again before they are completed and the customer is given the opportunity to correct them by clicking on the "Change product or shipping" button.
Immediately after sending the order, the customer will receive confirmation of receipt of his order by sending an e-mail listing the details of the order (hereinafter: "order confirmation"). This order confirmation also constitutes the acceptance of the customer's offer and thus the confirmation of the contract. Together with the Order Confirmation, the Customer shall again receive these General Terms and Conditions, the cancellation policy with sample cancellation form for information purposes, as well as the confirmation of payment and the invoice. Services that are not listed in the order confirmation are not subject matter of the contract.
In the case of consumers, there is a right of cancellation in accordance with the Chainberry cancellation policy, which is accessible to the customer via a link before the order is placed and which is sent to the customer with the order confirmation. A consumer is any natural person who concludes a legal transaction for purposes that can predominantly be attributed neither to his commercial nor to his independent professional activity. The right of withdrawal expires prematurely if Chainberry or its service provider (MVZ, doctor, etc.) has provided the service in full and has only started to provide the service after the customer has given its express consent to the premature expiry of the right of withdrawal and at the same time has confirmed its knowledge that it loses its right of withdrawal upon complete fulfilment of the contract by Chainberry or its service provider (MVZ, doctor, etc.).
Delivery & Transfer of risk
The ordered certification authorisations are delivered in the form of codes, unless otherwise contractually agreed, to the e-mail address specified by the client. Chainberry reserves the right to release itself from the obligation to fulfil the contract if the goods are to be delivered by a supplier on the day of delivery and the delivery fails to take place in whole or in part. This reservation of self-delivery is only valid if Chainberry is not responsible for the non-delivery. In particular, Chainberry is not responsible for the non-delivery if a so-called congruent hedging transaction was concluded with the supplier in time to fulfil the contractual obligations. If the goods are not delivered, Chainberry will inform the customer immediately about this circumstance and refund an already paid purchase price as well as shipping costs.
The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover.
Video monitoring and certification of test results
The certification of test results is only possible with rapid tests for laypersons accepted by Chainberry, which have been tested and validated by the Federal Institute for Drugs and Medical Devices (BfArM) and the Paul Ehrlich Institute. A list of the rapid tests currently accepted by Chainberry can be viewed on the website testifly.de. It is the responsibility of the customer to have a functional rapid test kit within the meaning of sentence 1 at hand when carrying out the certification process.
In order to be able to carry out a video-assisted test and certification, the client requires, in addition to a quick test as defined in paragraph (1), the Testifly app, a smartphone with a high-resolution camera, a functioning internet connection with sufficient bandwidth (recommended: 50 Mbit/s downstream and 20 Mbit/s upstream) and their own valid identification document (identity card or passport). Identity documents from over 150 countries are accepted.
The customer receives detailed information about the testing process in the Testifly app and on the website. The steps listed therein must be followed exactly. Otherwise, the certification cannot be completed successfully. Errors in the execution of the test lead to an invalid test result and a forfeiture of the acquired authorisation code.
Chainberry, in cooperation with Dr. Sita Arjune, Takustr. 1, 50825 Köln (“medical partner”), offers video support for the implementation of the self-tests.
If the video accompaniment and the certification process are interrupted due to technical problems on the part of the client (e.g. interruption of the internet connection, insufficient memory capacity of the end device used, or similar), the authorisation code expires and the test cannot be repeated with the quick test used in the process.
After error-free completion of the certification process, the customer receives a certificate about the test result in the Testifly app. The certificate is dispatched within the service hours (Monday to Sunday from 08:00 to 20:00 CET/Berlin) usually within 2 hours after performing the quick test and completing the certification process. If the test is carried out between 20:00 and 08:00 CET/Berlin, the certificate will be sent from 08:00 CET/Berlin on the following day. The specified time by which the certificate will be sent can only be met if the client has carried out the self-testing in good time - i.e. in compliance with the specified lead time - and properly.
The certificate is dated on the date on which the test result is available. The possibilities of using the certificate depend on the intended use and the respective applicable specifications and legal or official regulations. It is the responsibility of the customer to inform himself whether the certificate is sufficient for his purposes via a rapid test.
The customer receives a simple right of use to the certificate, which is unlimited in terms of time and space. Duplication for own purposes by printing is permitted (e.g. to prove a negative test result by physical presentation to third parties).
Chainberry draws the customer's attention to the fact that, in the event of a positive test result, the duties of conduct set out in the information sheet on what to do in the event of a positive SARS-CoV-2 PoC antigen test in accordance with the Federal Institute for Drugs and Medical Devices must be observed and which the customer then receives. In the event of a positive test result, the medical partner will make a corresponding report to the responsible health authority.
All prices quoted are in euros and include VAT at the statutory rate. The provision of the services to the customers takes place after payment in accordance with the payment methods listed in § 6 para. 2 of these GTCs. If a customer is in default with his payment obligations, Chainberry may claim damages in accordance with the statutory provisions. The customer receives an invoice from Chainberry in PDF format to the e-mail address provided by the customer.
Payment of the price for the ordered services shall be due immediately upon conclusion of the contract. In the event of default, the statutory provisions shall apply. Chainberry accepts payments via PayPal, direct debit (SEPA-compliant) and credit card.
All payments are to be made without deduction to Chainberry. A set-off is excluded, unless the set-off claim is undisputed or legally established or recognised in writing by Chainberry. The customer can only exercise a right of retention insofar as the claims result from the same contractual relationship. Exclusions do not apply if it is a counterclaim arising from a claim in kind entitling the customer to refuse performance or if rights are asserted due to a defect.
Chainberry reserves the right to issue voucher codes that can be redeemed via testifly. The voucher can only be redeemed before completing the order process by entering the voucher code. Subsequent offsetting is not possible. Only one voucher can be redeemed per order. The price for the services ordered must be at least the amount of the voucher. Any remaining credit will not be refunded. Voucher credit is neither paid out in cash nor does it earn interest. The voucher will not be refunded if the customer does not make use of the services paid for in full or in part with the voucher within the scope of his statutory right of withdrawal and returns delivered goods. The voucher is transferable. Chainberry can make payment to the respective holder with discharging effect. This does not apply if Chainberry has knowledge or grossly negligent ignorance of the ineligibility or legal incapacity. The claim for redemption of the voucher expires within 3 years from the end of the year in which the voucher code (according to the date of issue) was issued.
Warranty for defects of quality and title
Insofar as there are defects in the codes sent, the customer shall be entitled to the statutory warranty rights in accordance with the following provisions. Defects become time-barred within one year. The period shall begin at the end of the year in which the certificate was issued. If the customer is an entrepreneur, the limitation period is one year. This does not apply as far as Chainberry has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods, and not for claims for damages of the customer which are directed to compensation of a bodily injury or damage to health due to a defect for which Chainberry is responsible or which are based on intentional or grossly negligent fault of Chainberry or its vicarious agents.
If there are defects and these were asserted in time, Chainberry is entitled to subsequent performance. If the supplementary performance fails, the customer is entitled to withdraw from the contract or to reduce the purchase price. In all other respects the statutory provisions apply.
The customer is informed that it cannot be excluded that rapid tests show a false-positive or false-negative test result. Underlying causes may be, for example, a low quality of the material taken by means of a smear test (e.g. due to subsequent contamination, due to defective smears, defective packaging or insufficient cooling) or an impairment of the analysis due to unforeseeable or unknown reasons. In principle, the method used can only detect infections with the coronavirus if the mucosa is affected and viruses have already multiplied intracellularly; according to current scientific knowledge, this usually occurs within the first few days after infection. Samples of insufficient quality (wrong collection site, too little swab material, etc.) as well as delayed or improper storage can thus lead to false-positive or false-negative results. A negative test result does not exclude the presence of a coronavirus infection.
If infection is suspected, the test should be repeated regularly. If the problem underlying a false-negative or false-positive result could not be detected during the verification of the rapid test by Chainberry or the respective physician, the latter is not responsible for the incomplete, potentially misleading or false test result of an analysis.
Without prejudice to the following provisions, liability is excluded for any consequential damages such as missed appointments, missed flights, costs, damages and/or lost sales or profits, which are due to the fact that the quick test was not carried out despite an existing authorisation code for reasons that are not the responsibility and cannot be attributed to Chainberry or the respective service provider (MVZ, doctor, etc.) and/or the test result and/or the report was not available in time and/or in the case of a false-negative or false-positive test result.
Chainberry is otherwise liable without limitation, insofar as the cause of damage is based on intent or gross negligence. Chainberry is also liable for the slightly negligent breach of obligations, the fulfilment of which enables the proper execution of the contract in the first place and on the compliance with which the customer regularly relies, but in each case only for the foreseeable damage typical for the contract. Chainberry is not liable for the slightly negligent violation of other obligations than the above-mentioned ones. The limitations of liability in the preceding paragraph do not apply in the event of injury to life, limb or health, for a defect following the assumption of a guarantee for the quality of the product and in the event of fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.
If the liability of Chainberry is excluded or limited, this also applies to the personal liability of its employees, representatives and vicarious agents. Identity deception, criminal liability under IfSG
The customer is advised that he/she may be liable to prosecution in the event of deception of identity. Furthermore, it is pointed out that the customer is liable to prosecution according to § 75a IfSG.
Amendments and supplements to this contract, including the agreement to waive this written form requirement, must be made in writing. Should any provision of this contract be or become invalid in whole or in part, this shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by a provision that comes as close as legally possible to the intention of the parties. The same shall apply in the event of a loophole. § Section 139 BGB shall not apply.
The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws. Insofar as the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Hamburg shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship.