GENERAL TERMS AND CONDITIONS
1. SCOPE OF APPLICATION, DEFINITIONS
(1) These General Terms and Conditions (GTC) of DigiDuck GmbH, Poststraße 61, 41516 Grevenbroich (hereinafter referred to as “DigiDuck”), apply to all offers and agreements regarding the use of the digital Learn + Info Management System (hereinafter referred to as “System”) by the contractual partner of DigiDuck (hereinafter referred to as “Customer”). The Customer and DigiDuck together are also referred to as “Parties” or individually also as “Party”.
(2) The Customer’s general terms and conditions do not apply; they are hereby expressly rejected. They do not apply even if the Customer refers to their applicability in an order or in the order acceptance and DigiDuck does not expressly object to them again.
2. CONCLUSION OF CONTRACT
(1) The Customer may purchase a subscription (“Subscription”) with respect to various hosted contents of the System (each hereinafter referred to as a “Service”) by signing the individual contract in the form of an offer (hereinafter referred to as an “Individual Contract”) with reference to these GTCs and the Service Description. In each Individual Contract, the respective Service is described in connection with the Service Description. These GTCs, the Service Description and the signed Individual Contract (together hereinafter referred to as the “Contract”) shall govern the Customer’s subscription to the Service agreed in the Individual Contract.
(2) In the event of contradictions between the provisions of the Individual Contract, the Service Description and these GTCs, the Individual Contract shall take precedence over the Service Description and the Service Description shall take precedence over these GTCs.
(3) Subject to payment of the subscription fees and applicable taxes by the Customer, DigiDuck grants the Customer a non-exclusive, non-assignable and non-transferable subscription to use the Service agreed upon in the Individual Contract. Customer is authorized to use the Service only for Customer’s internal purposes and only in accordance with the terms of the Agreement.
3. AUTHORIZED USERS
(1) An authorized user is in each case a named, natural person. Unless otherwise agreed in the individual contract, only personnel of the Customer shall be entitled to use the Service. This includes employees as well as executives of the Customer and temporary workers employed by the Customer. Personnel of a third party (e.g. service providers of the Customer) may also be authorized users if (i) this is necessary, (ii) a contractual relationship exists between the third party and the Customer and (iii) the third parties have been named in the individual contract.
(2) Access to and use of the Services shall apply to the number of Authorized Users specified in the Individual Agreement.
(3) A change of the natural person assigned to an authorized user is only permitted with the prior consent of DigiDuck.
(4) The customer is not permitted to pass on the service that is the subject of the contract to third parties, grant access or (publicly) demonstrate it without prior written agreement with DigiDuck.
(5) The usage parameters laid down in the individual contract and the subscribed number of authorized users are therefore valid in their entirety for the usage of the Service by the Customer.
4. RIGHTS OF USE
(1) DigiDuck grants the Customer a non-exclusive, non-transferable right to use the Service online, which is limited in time to the term of the contract according to paragraph (4). This includes the right to access the contents agreed upon in the individual contract and the creation of copies of the program code in the working memory of the Customer resulting from such access.
(2) The Customer is not entitled to use the Service to a greater extent than is expressly permitted within the scope of these GTC, the service description and the individual contract. In particular, the Customer shall not be entitled (i) to make the Service available to other third parties, with the exception of clause (3), paragraph (1), (ii) to make modifications to the Service, or (iii) to sublicense the Service.
(3) To the extent that the provision of accompanying training materials is contemplated, DigiDuck hereby grants Customer a non-exclusive right, limited in time to the term of this Agreement (Section (4)), to electronically retrieve and print one copy of such materials and to make one backup copy.
(4) The contract does not transfer any moral rights or other industrial property rights. Therefore, all ownership, copyright, and intellectual property rights in the Service and its documentation shall remain at all times with DigiDuck and DigiDuck’s licensors. Customer shall not delete, alter or obscure any copyright or other proprietary rights notices relating to the Service or their Documentation.
5. CUSTOMER DATA
(1) All content, data and information provided, stored, collected, transmitted or received by Customer or users authorized by Customer for use in connection with the Service and all materials provided, stored, collected, transmitted or received by DigiDuck at the direction of Customer or users authorized by Customer in connection with the Service are hereinafter referred to as “Customer Data”.
(2) Customer is prohibited from uploading any Customer Data (i) that infringes any third party rights, (ii) that violates any applicable law, (iii) that results in or is likely to result in a violation by DigiDuck of any applicable law, (iv) that compromises or is likely to compromise the security of the Service and/or DigiDuck’s Portal, (v) that more than insignificantly impairs the performance of the Service and/or DigiDuck’s Portal, or (vi) that is not free of viruses and/or malware.
(3) In the event that Customer Data violates the foregoing paragraph (2), or in the event of an emergency, threat, or perceived threat to the Service and/or the Portal involving Customer Data, DigiDuck reserves the right to disable and take Customer Data offline or irrevocably detach it. DigiDuck is not responsible for any adverse impact on the quality of the Service due to Customer Content or any such deactivation.
(4) The Customer grants DigiDuck a non-exclusive, non-sublicensable, worldwide right, limited in time to the term under clause (4), to use Customer Data for the purpose of fulfilling DigiDuck’s obligations under the Agreement. The right of use includes all types of use, in particular storing, copying, executing, processing, editing, also by third parties, the right of reproduction as well as the right to make changes, translations, additions, further developments and to make it publicly available, as far as this is necessary to provide the service to the customer.
(5) DigiDuck will immediately notify the Customer in writing if any claims are made against it for infringement of third party intellectual property rights or other rights in connection with the Customer Data. If a claim is made against DigiDuck by a third party due to an alleged infringement of intellectual property rights or other rights, DigiDuck is obligated to take all necessary and legally possible measures to enable the Customer to conduct the legal dispute or to negotiate its settlement, as well as to support the Customer in the investigation and defense of the respective claim or the settlement of the legal dispute. In return, Customer will indemnify and hold DigiDuck harmless by paying the costs of the litigation, paying reasonable attorneys’ fees, or those agreed to by Customer, incurred by DigiDuck in the conduct of the litigation at Customer’s direction, and paying on final judgment against DigiDuck or settlements approved by Customer. DigiDuck is free to participate in the litigation at its own expense.
6. OBLIGATIONS OF THE CUSTOMER
(1) Customer is solely responsible for (i) Customer’s IT infrastructure, including its computers, (ii) the security and use of Customer’s and Users’ access data, and (iii) any access to and use of the Service directly or indirectly through or by means of Customer’s and Users’ IT infrastructure, with or without Customer’s knowledge or consent.
(2) Customer is prohibited from the following when using the Service: (i) copy, translate, disassemble, decompile, reverse engineer or otherwise modify the Service or the Materials (except as permitted by mandatory law or under this Agreement), in whole or in part, or create derivative works thereof; provided, however, that the Documentation may be copied for internal use to the extent necessary; (ii) use the Service in a manner that violates any applicable law, including, without limitation, transmitting information or data that is unlawful or infringes any third party proprietary rights; and (iii) compromise or circumvent the operation or security of the Service.
(3) With respect to Customer Data that Customer transmits or otherwise makes available to DigiDuck, Customer is solely responsible for its integrity and shall take all measures necessary to secure Customer Data and otherwise mitigate the risks associated with the storage or transmission of Customer Data via the Service, including the risk of data loss.
(4) Customer acquires all rights necessary to make the Customer Data available to DigiDuck for access and use on the Service and ensures that Customer’s and/or DigiDuck’s use of the Customer Data on the Service complies with all applicable license and usage terms of the applicable provider of such Customer Data.
(5) If DigiDuck is requested by a licensor of Customer Data to remove Customer Data from the Service, or if DigiDuck becomes aware that Customer Data may violate applicable laws or third party rights, DigiDuck may so notify Customer and, in such event, Customer will promptly remove such Customer Data from the Service. If Customer fails to take appropriate action upon receipt of such notice from DigiDuck, DigiDuck may deactivate such Customer Data until the potential infringement is remedied.
(6) If Customer receives passwords from DigiDuck to access the System, such passwords must be kept secret and disclosed to a limited group of persons only to the extent absolutely necessary. The Customer will change standard passwords provided to him by DigiDuck immediately after their transmission and at regular intervals thereafter, provided that it is possible for the Customer to change these passwords. If the Customer becomes aware that unauthorized third parties are or could be aware of the passwords, the Customer must inform DigiDuck immediately.
(7) The Customer shall inform all users authorized to use the Service about the relevant provisions of the Agreement and shall be responsible for their compliance.
(8) Obligations of the Customer are primary obligations.
7. FEES AND TERMS OF PAYMENT
(1) The Customer is obliged to pay the monthly subscription fees. This is calculated as an annual fee at the beginning of the contract year. The calculation of the addition or reduction of users is calculated according to the scale structure. Any resulting difference to the annual fee will be settled within 30 days.
(2) DuckPoints are charged immediately after the order. Their validity is 36 months. They are used to pay for the use of the training courses and the information provided by the customer. The invoice amount is to be paid within fourteen (14) days after receipt of the invoice without deduction.
(3) The agreed fees are exclusive of the applicable statutory value added tax.
(4) If the Customer is in default of payment, DigiDuck may, after notifying the Customer and without limiting DigiDuck’s rights and claims under the Contract, suspend the Customer’s access to the Service affected by the non-payment until the fees are settled. DigiDuck will maintain the Service environment established for Customer on the System for at least thirty (30) days after the date of such suspension. Thereafter, DigiDuck may terminate service if charges remain unpaid.
(5) DigiDuck reserves the right to periodically adjust its terms and conditions for DuckPoints and the subscription fees to reflect market and price trends. This adjustment of the conditions will be communicated to the customers in writing four weeks before its occurrence.
8. TERM AND TERMINATION
(1) The Customer’s subscription shall commence on the Subscription Start Date specified in the Individual Agreement and, unless otherwise agreed in the Individual Agreement, shall have an initial term of twelve months (“Subscription Start Term”). If the Subscription is not terminated with three (3) months’ notice to the end of the Subscription Initial Term, its term shall be extended by an additional twelve (12) months (each, a “Subscription Extension Term”). If the Individual Agreement is not terminated with three (3) months’ notice to the end of the Subscription Renewal Term, the Subscription Renewal Term shall be extended by further twelve (12) month intervals, unless terminated with the same notice to the end of the respective twelve (12) month interval.
(2) Upon termination of the contract, the customer’s access to the system shall be blocked. The customer therefore has neither access to the system nor to any customer data that may exist there. Customer data still required by the Customer shall be backed up by the Customer prior to termination of the Agreement. Upon termination of the contract, DigiDuck is entitled to delete any customer data still present on the system.
(3) Unused DuckPoints will be deleted at the end of the contract period and can neither be transferred nor paid out.
(4) The right of the parties to extraordinary termination for good cause remains unaffected.
(5) An important reason for extraordinary termination by DigiDuck after setting and unsuccessful expiration of a reasonable deadline for remedy exists in particular, a. if the Customer violates contractual provisions or b. if DigiDuck is entitled to block the Customer due to default of payment according to section (8) paragraph (4).
(6) An important reason for extraordinary termination by DigiDuck without determination and unsuccessful expiration of a period set for remedy exists in particular, a. if the Customer is insolvent or over-indebted or b. if insolvency proceedings over the assets of the Customer are rejected or discontinued due to lack of assets covering the costs of these proceedings or if the Customer has voluntarily or involuntarily initiated proceedings for its dissolution, liquidation or winding up.
(7) Notice of termination must be given in writing.
9. WARRANTY OF DEFECTS
(1) Any generally available version of the Service shall be free from material defects if it substantially conforms to the specifications in the Individual Agreement, including any updates thereto. If there is a material defect, DigiDuck will, in its sole discretion, either (i) correct the defect in the Service, (ii) replace the Service, or (iii) cancel the subscription for the Service and refund the fees paid for the Service during the current term of the subscription. The remedy of the defect may also consist of DigiDuck showing the Customer reasonable ways to avoid the effects of the defect.
(2) If there is a defect in title, DigiDuck will, at its sole discretion, either, (i) modify the Service, (ii) acquire the appropriate rights, or (iii) cancel the subscription for the Service and refund the fees paid for the Service during the current term of the subscription.
(3) No-fault liability for damages for defects that were already present at the time the respective individual contract was concluded is excluded.
(4) The customer is obligated to immediately notify DigiDuck in writing of any breach of duty, giving a precise description of the reason.
(5) DigiDuck assumes no responsibility that the Customer’s use of the Service will result in the Customer’s compliance with any laws, regulations, requirements or directives of governmental authorities.
10. THIRD PARTY CLAIMS
(1) In the event that a third party asserts claims based on intellectual property rights (including, but not limited to, claims of infringement of copyrights, patents, trade secrets, or other intellectual property rights) that conflict with the exercise of the contractual right to use the Service, the Customer shall immediately notify DigiDuck in writing and in full. If the Customer discontinues the use of the Service in order to mitigate damages or for other important reasons, he is obligated to inform the third party that the discontinuation of use does not constitute an acknowledgement of the alleged infringement of intellectual property rights. He will only conduct the legal dispute with the third party in agreement with DigiDuck or authorize DigiDuck to conduct the dispute.
(2) This applies accordingly if a third party asserts claims against DigiDuck that are based on actions of the customer, authorized users or customer data.
DigiDuck is liable for damages and reimbursement of expenses, regardless of the legal reason, arising from and in connection with the contract according to the following regulations:
(1) DigiDuck is liable without limitation in cases of explicit and written assumption of a guarantee or a procurement risk, in cases of damage to property or financial loss caused intentionally or by gross negligence, and for intentional or negligent injury to life, limb or health.
(2) Liability under the Product Liability Act remains unaffected.
(3) In the event of a slightly negligent breach of duty, DigiDuck is only liable for such essential contractual obligations, the fulfillment of which makes the proper execution of the contract possible in the first place, the breach of which endangers the achievement of the purpose of the contract and on the compliance with which the Customer regularly relies (so-called cardinal obligations). DigiDuck’s liability in this regard is, however, limited to the typical damage foreseeable at the time of the conclusion of the contract, which was foreseeable at the time of the conclusion of the respective individual contract.
(4) At the time of the conclusion of the individual contract, the parties assume that in total the subscription fee paid for the respective service concerned during a period of 3 months covers the typical damage foreseeable at the time of the conclusion of the contract. Therefore, in cases of a slightly negligent breach of a material obligation (cardinal obligation), the parties limit DigiDuck’s liability in total to the subscription fee paid for the respective service during a period of 3 months. In the event of several cases in one calendar year, DigiDuck’s liability is limited in total to the subscription fees agreed in the individual contract for 12 months.
(5) The strict liability of DigiDuck for defects already existing at the time of the conclusion of the contract (§ 536 a BGB) is excluded. The liability regulations according to the above paragraphs (1) to (4) remain unaffected.
(6) DigiDuck is only liable for the loss of data to the extent of the expenses incurred if the Customer regularly and adequately performs data backups and thereby ensures that lost data can be restored with reasonable effort.
(7) As far as the liability is effectively excluded or limited according to the above paragraphs, this also applies to the personal liability of DigiDuck’s employees, other staff, organs, representatives and vicarious agents.
(8) A limitation period of one year applies to all claims against DigiDuck for damages or reimbursement of futile expenses in the case of contractual and non-contractual liability. The limitation period begins at the point in time specified in § 199 Paragraph 1 of the German Civil Code (BGB). It shall come into effect at the latest on expiry of five years from the date on which the claim arose. The provisions of sentences 1 to 3 of this paragraph shall not apply to liability in the event of intent or gross negligence or in the event of personal injury or under the Product Liability Act.
(1) Neither of the parties shall be responsible for delays in delivery and disruptions in performance due to events of force majeure.
(2) Events of force majeure shall include, but not be limited to, strikes, lawful internal company labor disputes, lawful labor disputes at DigiDuck’s subcontractors, war, terrorist attacks, riots, forces of nature, pandemics, epidemics, fire, sabotage attacks by third parties (such as through denial of service attacks) or the loss of permits through no fault of the parties.
(3) The Parties shall notify each other of the occurrence of any Force Majeure Event.
13. TRANSFER, ASSIGNMENT, SET-OFF, RETENTION
(1) The Customer is not entitled to transfer the contract for the Service as a whole or in parts to a third party or to assign claims against DigiDuck. § 354a HGB remains unaffected.
(2) DigiDuck is entitled to assign, transfer or otherwise dispose of rights and obligations under this contract in whole or in part at any time without notice.
(3) A set-off or the exercise of a right of retention by the Customer is only permitted with undisputed or legally established claims.
(4) The right of retention may only be exercised if the customer’s counterclaim is based on the same contractual relationship.
14. LIMITATION OF LIABILITY
All claims of the customer shall become statute-barred twelve months after knowledge, at the latest, however, 36 months after the date on which the relevant service was rendered or the relevant breach of duty was committed. The statutory limitation rules for intentional and grossly negligent acts, for claims due to intentional or negligent injury to life, body or health, due to fraudulent misrepresentation and for claims under the Product Liability Act shall remain unaffected.
15. DATA PROTECTION AND DATA SECURITY
(2) By registering on the system, the customer agrees to the processing of personal data, in compliance with all currently applicable data protection laws, until revoked.
(3) Insofar as personal data is also processed on behalf of the Customer (e.g. by employees of the Customer), a contract for the processing of data on behalf pursuant to Art. 28 DSGVO must be concluded in addition.
(4) DigiDuck undertakes to take appropriate administrative, physical and technical security measures to protect the security of the Services and Customer Content.
(1) The parties undertake to treat as confidential all confidential knowledge and information which they obtain or have obtained on the occasion of the initiation of the contract or the fulfillment of the contract and to maintain silence about this with respect to outsiders.
(2) All information which is expressly designated as confidential or whose confidentiality results from its subject matter or other circumstances shall be deemed confidential.
(3) In particular, the parties undertake to treat as confidential all confidential information provided to them. Subject to the provisions set out below, they shall not make this information available to third parties and shall use it exclusively within the scope of the cooperation described above.
(4) The confidentiality obligation shall not apply to information – which was already known at the time it was provided without any obligation to treat it confidentially or – which has already been published at the aforementioned time or – which is subsequently published by third parties without this being attributable to any action on the part of the recipient of the information which is contrary to law or to the contract or – which has been lawfully received from third parties without any obligation to treat it confidentially or – which has been expressly released by written declaration of both parties or – which is to be disclosed on the basis of statutory duties to provide information.
(5) The parties shall take all necessary precautions to ensure confidential treatment. In particular, they shall disclose confidential information only to those employees who must receive it due to their activities within the scope of the cooperation described above (need to know). In addition to this group of persons, DigiDuck may make the confidential information available to persons of affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG) who are responsible for the decision within the scope of this cooperation. These persons are to be obligated to treat this confidential information confidentially.
(6) If it becomes necessary in the course of the cooperation between the parties to involve third parties (e.g. subcontractors, suppliers, consultants) and to pass on confidential information to them, corresponding written agreements shall be concluded with the third parties in order to ensure compliance with the provisions of these GTC and of the contract.
(7) Confidential documents including all copies made thereof shall be surrendered upon request. Rights of retention may not be asserted in this respect. This shall not apply to documents which are required by the other party for the performance of the contract or for the handling of the contractual relationship.
(8) The obligation of confidentiality continues to apply 3 years after the termination of this contract.
(9) DigiDuck may, as described below, create analyses in which (in part) Customer Data and information resulting from Customer’s use of the Service are used (“Analyses”). Analyses will anonymize and aggregate data. Analytics may be used for the following purposes: – product improvement (especially product features and functions, workflows and user interfaces) and the – development of new products and services; – resource and support improvement; – internal demand planning; – product performance improvements; – verification of security and data integrity;
(10) Public Announcements Neither party shall make or publish any announcement, statement, press release or other advertising or marketing material concerning the prices and terms of this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. During the term of the Individual Agreement, Customer grants DigiDuck the right to include Company’s name and logo in a public list of its customers.
17. SUBJECT TO CHANGE
(1) DigiDuck has the right to change and or amend these Terms and Conditions and/or the Service Description.
(2) Intended changes to the GTC and/or the service description will be communicated to the Customer in writing or in text form (in particular via e-mail) at least six weeks before they become effective. The customer shall have a special right of termination at the time the changes take effect. If the customer does not terminate the contract in writing within six weeks of receipt of the notification of change, the changes shall become part of the contract at the time they take effect. The customer shall be specifically informed of this consequence in the notice of change. If the Customer does not object to the amended terms and conditions and continues to use the Service after expiry of the objection period, the GTCs shall be deemed to have been agreed as effective upon expiry of the period – at the earliest, however, at the time they take effect.
(3) In the case of changes to the service by DigiDuck, which fall under the regulation of the service description, this clause does not apply.
(4) In the case of changes to the Service by DigiDuck, which do not fall under the regulations of the service description, the Customer does not have a right of objection in the sense of the above paragraph (2), but rather a special right of termination with effect from the effective date of the change, which the Customer must exercise within the stated period.
18. FINAL PROVISIONS
(1) Amendments and supplements to these GTC (unless a case of clause 17 applies) as well as other parts of the contract, in particular the individual contract, must be made in writing. This shall also apply to any waiver of this written form requirement. The written form within the meaning of these General Terms and Conditions requires – also insofar as it is required elsewhere – the handwritten signature and the transmission of the signed document in the original or by fax.
(2) German law shall apply exclusively to all claims arising from the contract. UN sales law is excluded.
(3) Place of jurisdiction is Grevenbroich.
(4) If individual provisions of these license terms are or become invalid or unenforceable, or if these license terms contain loopholes, this shall not affect the validity of the remaining provisions of these license terms. In place of the invalid or unenforceable provision or the missing provision, the parties shall agree on such substitute provision as the parties would reasonably have agreed if they had been aware of the invalidity, unenforceability or absence of the relevant provision at the time of entering into the agreement. If a substitute provision is not reached, Section 306 (2) of the German Civil Code shall apply accordingly.