General terms and condition
Terms and conditions elearnio platform
(hereinafter referred to as "T&C")
elearnio GmbH, David-Gilly-Straße 1, 14469 Potsdam, e-mail: firstname.lastname@example.org ("Provider"), provides customers with a web-based talent management platform for their employees or other authorized persons ("Users") at https://elearnio.net/ ("Platform"). The following T&Cs apply to the use of the platform:
- These T&Cs apply to all services offered by the provider to users via the platform. By activating the check box "We accept the General Terms and Conditions", the user accepts the General Terms and Conditions valid at that time. The T&Cs can be accessed at any time in the currently valid version at https://elearnio.com/terms-of-service/.
- These T&Cs shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the user 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 user.
- The contractual language is German. If translations of these T&Cs or other contract-related declarations and documents are made into languages other than German ("read versions"), only the German version shall be binding.
- The T&Cs as well as the service description according to section 2 are available to the user at any time via the link mentioned in section 1.1. In addition, there is the possibility of storage in accordance with section 3.3.
Conclusion of contract and scope of services
- The platform allows users 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 via the platform.
- 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 under the selected conditions by clicking on the "Order" button. With e-mail confirmation and sending the content of the contract, the provider accepts the offer of the customer, whereby a contract for this service is concluded.
- The agreed terms and conditions of the contract shall be sent to the customer by e-mail so that they can be stored permanently.
- The main service obligation of the provider is the provision of the platform. This can basically be visited free of charge. The further performance obligations of the provider result from the selected product type in accordance with para.1. The provider will continuously develop the platform at its own discretion and improve it through ongoing updates and upgrades. A claim on the part of the user to these further developments is not justified by this.
- 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.
- The platform is provided to the user 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 obligated to provide or make available source codes, calculation bases for value determination or interface definitions.
- 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 user's registration in accordance with section 4 and the T&Cs applicable at that time ("as is"). Apart from that, the User 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 at its own reasonable discretion (§ 315 BGB), taking into account the interests of the User, or to discontinue it permanently or temporarily, provided that this does not impair essential contractual obligations of the Provider and this is reasonable for the User. Furthermore, the provider reserves the right to change or expand the content and structure of the platform as well as the associated user interface, provided that this does not or does not significantly impair the fulfillment of the purpose of the contract concluded with the user.
Prices, payment and billing obligations
- All prices stated on the Provider's platform include the applicable statutory value-added tax.
- During the term of the contract, the User is free to increase the scope of services by selecting 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.
- If a contractual relationship subject to a charge is concluded for a product in accordance with Section 2, the fee payable for this shall become due for payment immediately in advance upon 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 payable 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 Section 4.1. If additional users are added during the term of the contract, billing shall take place at the end of the respective month in which new users are added.
- Invoicing is automated via e-mail in the respective agreed billing cycle so that the invoices can be stored permanently; paper invoices are not generated.
- In addition, the Provider shall, at its reasonable discretion, adjust the fees to be paid on the basis of this Agreement to the development of the costs that are relevant 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 hosting and maintenance of the platform increase or decrease or other changes in the legal framework lead to a changed cost situation. Increases in one type of cost, e.g., hosting costs, may only be used to increase prices to the extent that they are not offset by any decreases in costs in other areas. In the event of cost reductions, e.g. in electricity procurement costs, the Provider shall reduce prices to the extent that these cost reductions are not fully or partially offset by increases in other areas. When exercising its reasonable discretion, the provider shall select the respective points in time of a price change in such a way that cost reductions are not taken into account according to standards that are less favorable for the user than cost increases, i.e. cost reductions shall have at least the same effect on prices as cost increases.
- Provider separately in the price change notification. In the event of termination, the price change shall not take effect with respect to the User. Otherwise, § 315 of the German Civil Code (BGB) shall remain unaffected.
- Changes in prices according to section 3.6 are only possible on the first day of the month. The Provider shall notify the User of the change in text form no later than 4 weeks before the planned effective date. In the event of a price change, the User shall have the right to terminate the contract in text form without observing a notice period as of the date on which the announced price adjustment takes effect.
- Individual services provided by the Provider via the platform may be subject to a charge in the future. The user will be informed of this at the latest before the first use of a chargeable service. Prior to the first use of a chargeable service, the User 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.
Term, termination and contract expiration
- Unless otherwise agreed, the minimum contract term is 12 months. After the end of the minimum contract period, the contract is automatically extended by the selected minimum contract period, unless it is effectively terminated beforehand with a period of notice of 4 weeks.
- After expiration of the minimum contract period, the contract can be terminated with a notice period of 4 weeks to the respective end of the contract.
- Any termination must be in text form, e.g. by e-mail to email@example.com, in order to be effective.
- The right to extraordinary termination remains unaffected.
Rights of use
- The User shall receive a simple, non-sublicensable and non-transferable right of use to Platform limited to the term of this Agreement in accordance with the following provisions. 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 User shall not be entitled to any rights not expressly granted to the User.
- The platform is provided by enabling online access (SaaS). A physical transfer of the platform to the User does not take place. The User may only use the platform for its own business activities.
- The customer uses the platform only by the agreed number of persons. If the number of registered users exceeds the number of persons licensed by the customer, this leads to a license upgrade of the customer according to the current pricing of the provider.
- The user is not entitled to make changes to platform. This does not apply to changes that are necessary for the correction of errors, provided that 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.
- 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.
- The granting of the rights of use specified in Paragraph 1 is subject to the condition precedent of full payment of the agreed remuneration.
Due diligence of users
- The User is responsible for taking the necessary precautions to prevent the use of the platform by unauthorized persons. This includes, in particular, the obligation to continuously check on its own responsibility that the agreed number of users in accordance with Section 5.3 is not exceeded.
- The Provider shall immediately eliminate all software errors in accordance with the technical possibilities. An error exists if the platform does not fulfill 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.
- The user is responsible for ensuring that the platform is not used for racist, discriminatory, pornographic, youth protection endangering, politically extreme or otherwise illegal purposes or against official regulations or requirements or that corresponding data is created and/or stored on the platform or server.
- If the user creates his own content via the platform, the user shall be responsible for ensuring that this content is saved on an external data carrier. The content created in this way can be exported by the user in XML format. Upon termination of the contractual relationship, the provider will save this content in a backup for another 3 months and then delete it irretrievably from its own systems.
Confidentiality and privacy
- The user is obligated to use such information that 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 person holding confidential information makes this information accessible to a third party in breach of his duty of confidentiality.
- The obligation to maintain secrecy shall continue to exist even after termination of the contract.
- The contracting parties shall comply with 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 maintain data secrecy in accordance with Section 5 of the German Federal Data Protection Act (BDSG), insofar as they are not already subject to a corresponding general obligation.
- In the event that the Provider acts as a processor in accordance with Art. 28 of the GDPR, the agreement on the commissioned data agreement shall apply. In the event of any conflict between this Agreement and the Agreement on Commissioned Data Processing, the latter shall prevail over the former.
Warranty for material defects and guarantee
- The contractual partners shall be liable to each other without limitation in the event of intent or gross negligence for all damage caused by them and their legal representatives or vicarious agents.
- In the event of slight negligence, the contractual partners shall be liable without limitation in the event of injury to life, limb or health.
- The limitations of liability resulting from paragraphs 1 and 2 shall 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 shall apply insofar as the Provider and the User have reached an agreement on the quality of the expert opinion. The provisions of the Product Liability Act shall remain unaffected.
- The availability of the Platform pursuant to Section 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, flood, industrial action for which the Provider is not responsible), as well as due to the performance of maintenance work that serves to maintain and improve the operability and functionality of the Platform.
- In all other respects, a contracting party shall only be liable insofar as 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 result in the achievement of the purpose of the contract being jeopardized. In these cases, liability shall be limited to compensation for the foreseeable, typically occurring damage. The strict liability of the provider for damages (§ 536a BGB) for defects existing at the time of the conclusion of the contract is excluded; paragraphs 1 and 2 remain unaffected.
- The contractual language is German. 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 user 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 T&Cs.
- Verbal collateral agreements have not been made. Amendments and supplements to these T&Cs 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.
- If the user is an entrepreneur in the sense of § 13 BGB, the place of jurisdiction for all disputes arising from the contractual relationship is the registered office of the provider.
Status: September 15, 2022