Terms of service elearnio platform

(hereinafter referred to as "T&C")

eLearnio GmbH, David-Gilly-Straße 1, 14469 Potsdam, e-mail: info@elearnio.com ("Provider"), provides the Customer with a web-based talent management platform at https://elearnio.de/ ("Platform") for the Customer's employees or other authorized persons ("Users"). The following ToS apply to the use of the platform:

1. General provisions

1. These ToS apply to all services offered by the Provider to Customer via the Platform. By activating the check box "We accept the Terms of Service", the Customer accepts the ToS valid at that time. The current version of the ToS can be accessed at any time at https://elearnio.de/agb/ . 
2. These ToS apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the contract if and to the extent that the provider has expressly consented to their application. The requirement of consent shall also apply if the provider performs the services without reservation in the knowledge of the general terms and conditions of the respective Customer.
3. The contractual language is German. This present translations of these ToS or other contract-related declarations and documents are made into languages other than German ("read versions"), only the German version shall be binding.
4. The ToS as well as the service description according to clause 2 are available to the Customer at any time via the link mentioned in clause 1. In addition, there is the possibility of storage in accordance with clause 3.3.

2. Agreement and subject matter

1. On the platform, the customers are enabled to choose between different products, currently between Start, Scale, Pro and Enterprise. The details of the respective service package of the products, in particular with regard to the scope of functions, term and pricing, result from the respective current service description, which is available on the platform. 
2. A contract for the provision of the platform is concluded by the customer selecting the desired edition or product type via the order form and making a binding offer to conclude a contract at the selected conditions by clicking on the "Order" button. With e-mail confirmation and sending of the content of the contract, the Provider accepts the Customer's offer, whereby a contract for this service is concluded.
3. The agreed terms of the contract are sent to the customer by e-mail so that they can be stored permanently.
4. The main service obligation of the provider is the provision of the platform. This can generally be visited free of charge. The Provider's further performance obligations result from the selected product type in accordance with para. 1. The Provider shall continuously develop the platform at its own discretion and improve it through continuous updates and upgrades. This does not constitute a claim on the part of the Customer to these further developments.
5. The Provider shall provide the platform with an overall availability of 95% on an annual average. The availability is calculated on the basis of the time allotted to the respective calendar month in the contractual period minus the time allotted to necessary maintenance periods. The platform is not available during maintenance work.
6. The Platform is provided to the Customer exclusively as a service executable in the browsers Firefox and Chrome for the use of the services offered with the Platform. The Provider is not obliged to provide or make available source codes, calculation bases for the valuation or interface definitions.
7. The Provider shall make the platform and the services offered there available in the same way as they were available at the time of the Customer 's registration in accordance with clause  4 and the ToS applicable at that time ("as is"). Apart from that, the Customer has no claim to a certain design or equipment of the platform. The provider reserves the right to change the platform, its functionalities and contents in whole or in part or to discontinue it permanently or temporarily at its own reasonable discretion (§ 315 of the German Civil Code), taking into account the interests of the Customer, provided that this does not impair essential contractual obligations of the provider and this is reasonable for the Customer. Furthermore, the provider reserves the right to change or expand the content and structure of the platform as well as the associated Customer interface, provided this does not or does not significantly impair the fulfilment of the purpose of the contract concluded with the Customer.

3. Prices, payment and invoicing

1. All prices stated on the Provider's platform are inclusive of the applicable statutory value added tax. 
2. During the term of the contract, the Customer is free to increase the scope of services by choosing a higher-level product type (upgrade). In the event of an agreement with the Provider, this shall increase the agreed price from the time the upgrade takes effect in accordance with the newly agreed service package.
3. If a contractual relationship subject to a charge is concluded for a product in accordance with clause 2, the fee payable for this shall become due for payment immediately in advance upon the effective conclusion of the contract. Bank transfer, SEPA, direct debit and credit card are available as means of payment. We reserve the right to add further means of payment. If additional users are added during the term of the contract so that the agreed number of users is exceeded, the fee to be paid per user shall become due for payment immediately on a pro rata basis from the time of registration on the platform until the respective end of the contract in accordance with clause 4. If additional users are added during the term of the contract, the invoice shall be issued at the end of the month in which the new users are added. 
4. Invoices are issued automatically by e-mail in the agreed billing cycle, so that the invoices can be stored permanently; invoices are not issued in paper form. 
5. In addition, the Provider shall, at its reasonable discretion, adjust the fees payable on the basis of this Agreement to the development of the costs that are decisive for the price calculation. An increase in the agreed fee shall be considered and a reduction shall be made if, for example, the costs for the procurement of content or the costs for the hosting and maintenance of the platform increase or decrease or other changes in the legal framework conditions lead to a changed cost situation. Increases in one type of cost, e.g. hosting costs, may only be used for a price increase to the extent that they are not compensated by possible decreases in costs in other areas. In the event of cost reductions, e.g. in electricity procurement costs, the provider shall reduce the prices insofar as these cost reductions are not fully or partially offset by increases in other areas. When exercising its reasonable discretion, the provider shall choose the respective times of a price change in such a way that cost reductions are not taken into account according to standards that are less favourable for the Customer than cost increases, i.e. cost reductions have at least the same effect on prices as cost increases.
6. The provider shall be informed separately in the price change notification. In the event of termination, the price change shall not take effect vis-à-vis the Customer. Otherwise § 315 of the German Civil Code (BGB) remains unaffected.
7. Changes to the prices in accordance with clause 3.6 are only possible on the first day of the month. The Provider shall notify the customer of the change in text form no later than 4 weeks before the planned effective date. In the event of a price change, the customer has the right to terminate the contract in text form without observing a notice period at the time the announced price adjustment takes effect. 
8. Individual services provided by the Provider via the platform may be subject to a charge in the future. The customer will be informed of this at the latest before the first use of a chargeable service. Before using a chargeable service for the first time, the customer must confirm that he has been informed of the chargeability of the service and the amount of the costs and that he agrees to the chargeable use of the service.

4. Term and termination

1. Unless otherwise agreed, the minimum contract term is 12 months. After the end of the minimum contract period, the contract shall be automatically extended by the selected minimum contract period if it is not effectively terminated beforehand with a notice period of 3 months.
2. After expiry of the minimum contract period, the contract can be terminated with a notice period of 3 months to the respective end of the contract.
3. Any termination must be in text form, e.g. by e-mail to sales@elearnio.com, in order to be effective.
4. The right to extraordinary termination remains unaffected.

5. Rights of use

1. The provider grants the customer a simple, non-sublicensable and non-transferable right of use to the platform, limited to the term of this contract, in accordance with the following regulations. The content provided by the provider via the platform may only be used or extracted in accordance with the purpose of use, in particular for internal purposes, and not outside the platform. Transfer to unauthorized third parties is not permitted. The Customer shall not be entitled to any rights not expressly granted. 
2. The platform is provided by enabling online access (SaaS). A physical transfer of the platform to the customer does not take place. The Customer may only use the platform for his own business activities.
3. The Customer shall use the platform only by the agreed number of users. If the number of registered users exceeds the number of persons licensed by the customer, this shall result in a license upgrade for the customer in accordance with the provider's current pricing.
4. The Customer is not entitled to make changes to the platform. This does not apply to changes that are necessary for the correction of errors if the Provider is in default with the correction of the error, refuses to correct the error or is unable to correct the error due to the opening of insolvency proceedings. 
5. If the Provider makes new versions, updates, upgrades or other new deliveries with regard to Platform during the term, the above rights shall also apply to these.
6. The granting of the rights of use specified in para. 1 is subject to the condition precedent of full payment of the agreed remuneration.

6. Customer obligations

1. The Customer shall take the necessary precautions on his own responsibility to prevent the use of the platform by unauthorized persons. This includes, in particular, the obligation to continuously check on his own responsibility that the agreed number of users in accordance with section 5.3 is not exceeded.
2. The Provider shall immediately eliminate all software errors in accordance with the technical possibilities. An error is deemed to exist if the platform does not fulfil the functions specified in the service description, delivers faulty results or does not function properly in any other way, so that the use of the platform is impossible or restricted.
3. The Customer shall be responsible for ensuring that the platform is not used for racist, discriminatory, pornographic, youth-protection-endangering, politically extreme or otherwise illegal purposes or purposes that violate official regulations or requirements, or that corresponding data are created and/or stored on the platform or the server. 
4. If the Customer or its Users create own content via the platform, the Customer shall ensure on his own responsibility that this content is saved on an external data carrier. The content created in this way can be exported by the Customer in XML format. Upon termination of the contractual relationship, the Provider shall save this content in a backup for a further 3 months and then irretrievably delete it from its own systems.

7. Confidentiality and data protection

1. The Customer is obliged to use such information which is not generally accessible or confidential only for the purposes of this contract and to maintain confidentiality towards third parties at all times. Information shall not be generally accessible in this sense if and to the extent that another holder of secrets makes this information accessible to a third party in breach of his duty of confidentiality.
2. The duty of confidentiality shall continue to exist after termination of the contract.
3. The contracting parties shall observe the applicable data protection provisions, in particular those valid in Germany, and shall oblige their employees deployed in connection with the contract and its performance to observe data secrecy in accordance with Section 5 of the German Federal Data Protection Act (BDSG), insofar as they are not already under a corresponding general obligation.
4. In the event that the Provider acts as a processor in accordance with Art. 28 GDPR, the Data Processing Agreement (DPA) shall apply. In the event of contradictions between this contract and the DPA, the DPA shall take precedence.

8. Warranty for material defects and guarantee

1. The contracting parties shall be liable to each other without limitation in the event of intent or gross negligence for all damage caused by them or their legal representatives or vicarious agents.
2. In the event of slight negligence, the contractual partners shall be liable without limitation in the event of injury to life, body or health.
3. The limitations of liability resulting from paragraphs 1 and 2 do not apply insofar as the provider has fraudulently concealed the defect or has assumed a guarantee for the quality of the expert opinion. The same applies insofar as the provider and the Customer have reached an agreement on the quality of the expert opinion. The provisions of the Product Liability Act shall remain unaffected.
4. The availability of the platform pursuant to clause 2.3 may be temporarily restricted in whole or in part due to technical disruptions for which the provider is not responsible or for reasons of force majeure (power supply and/or internet failure, fire, explosion, earthquake, storm, floods, industrial action for which the provider is not responsible), as well as due to the performance of maintenance work which serves to maintain and improve the operability and functionality of the platform. 
5. In all other respects, a contracting party shall only be liable if it has breached a material contractual obligation. Material contractual obligations are those obligations which are of particular importance for the achievement of the purpose of the contract, as well as all those obligations which, in the event of a culpable breach, may lead to the achievement of the purpose of the contract being jeopardised. In these cases, liability is limited to compensation for the foreseeable, typically occurring damage. The Supplier's strict liability for damages (§ 536a of the German Civil Code (BGB)) for defects existing at the time of conclusion of the contract is excluded; Paragraphs 1 and 2 remain unaffected.

9. Final provisions

1. 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 and the conflict of laws provisions; Art. 3 EGBGB shall remain unaffected. If the Customer has his habitual residence in another country within the EU/EEA at the time of the establishment of the membership, the application of mandatory legal provisions of this country shall remain unaffected by the choice of law made in these ToS.
2. No verbal collateral agreements have been made. Amendments and supplements to these ToS as well as all declarations of the parties relating to the contractual relationship must be made in text form. This also applies to the cancellation of the formal requirement.
3. If the Customer is an entrepreneur within the meaning of § 13 of the German Civil Code (BGB), the place of jurisdiction for all disputes arising from the contractual relationship is the registered office of the provider.

Data Protection Officer

Stefan Plough
c/o Fux Legal
Krausnickstrasse 10
10115 Berlin
stefan.pflug@fux-legal.de

Status: September 15, 2022