General Terms and Conditions of Business and Use eduBITES GmbH

Friday, 09.05.2024

Preamble

eduBITES GmbH (“eduBITES”) offers a platform for corporate companies (the “Customer”) that allows them to make the knowledge of their organization as well as external experts accessible and to further develop their employees. Our advanced AI-driven technology transforms this knowledge into dynamic, engaging multimedia learning experiences that enable employees to access this knowledge flexibly. eduBITES operates the services as a cloud-based solution and makes them available to customers for use via a web interface (the “Services”). eduBITES offers services that are subject to continuous development.

These General Terms and Conditions (“GTC”) form part of a binding “Contract”. These Customer Terms (or, if applicable, your written agreement with us) and all order forms (as defined below) together form a binding “Contract” between the customer and us. These GTC also apply to the further developed services. eduBITES and the customer are collectively referred to as “parties” or individually as a “party”

1. Scope

1.1. These General Terms and Conditions (“GTC”) in their current version exclusively apply to the conclusion of the contract and the use of the services of eduBITES, unless otherwise agreed in writing between the parties. Conflicting, deviating, or supplementary terms of the customer do not apply unless eduBITES expressly agrees to them in writing on a case-by-case basis through the signature of an authorized managing director. The GTC also apply if eduBITES provides its service with knowledge of conflicting or deviating terms of the customer.

1.2. eduBITES may amend these GTC at any time if new regulatory requirements arise due to the continuous technical development of the services and the associated expansion of usage possibilities. In the case of an existing contractual relationship with the customer, the amended GTC will be sent to the customer by email at least one (1) month before they take effect. The amendment is deemed approved by the customer if he does not object in text form before the effective date and continues to use the respective service. eduBITES will inform the customer of this consequence in the amendment notice.

1.3. The services of eduBITES are exclusively aimed at entrepreneurs within the meaning of § 14 BGB. Therefore, there is no right of withdrawal according to §§ 312 para. 1, 355 BGB.

2. Subject of the Contract

2.1. Details on the functionality of the services of eduBITES can be found either in a specific offer created for the customer or in the technical data published by eduBITES on its website.

2.2. eduBITES may use subcontractors to provide contractual services. Documents, information, and data of the customer may be passed on to the subcontractor to the extent necessary for the fulfilment of the service.

2.3. eduBITES may grant the customer time-limited test access to the services. During the specified test period, the use of the services is free of charge. After the agreed test period ends, the test access automatically expires unless otherwise agreed.

2.4. Only the user (or his employees) with whom the respective contract exists is entitled to the services. It is prohibited to transfer the user account to third parties or to grant usage rights to third parties in any other way.

3. Conclusion of Contract and Registration

3.1. The contract between eduBITES and the customer for the use of the services can be concluded either in writing or electronically in the future (if technically available, for example, by email or via a future online order form on the eduBITES website). For free services, the contract is concluded by written confirmation of the registration by eduBITES.

3.2. In the case of a written conclusion of the contract, a contract is concluded by an individual written offer from eduBITES and the corresponding written acceptance of the offer by the customer.

3.3. In the future, if electronic contract conclusion via an online order form is technically feasible, the customer must first register for online access to the services. For registration, the electronic form provided by eduBITES must be filled out completely and truthfully. Submitting the online order form constitutes a binding offer to conclude a contract. The contract is concluded with the acceptance of this offer by eduBITES, which occurs by activating the respective service. eduBITES expressly reserves the right to reject offers from the customer.

3.4. With the acceptance of an offer – whether in writing or electronically in the future – the customer acknowledges these GTC as binding and assures that the data transmitted by him are correct and complete. The customer must promptly notify eduBITES of any subsequent changes to his data. Acceptance of the GTC is a prerequisite for the conclusion of the contract.

4. Availability, Maintenance, Disruptions

4.1. eduBITES will ensure a minimum availability of the services of 98% per year of use of the respective service by the customer. Excluded from this is the time required for necessary regular maintenance and care or technical improvement of the services (“maintenance time”) as well as cases according to clauses 4.3 and 10. eduBITES will attempt to perform these works during maintenance time outside regular working hours between 22:00 and 05:00 Central European Time/GMT. eduBITES has already taken the maintenance time into account when determining the remuneration, and a corresponding reduction due to the maintenance time is excluded.

4.2. The right to use the services only exists within the scope of the current state of technology.

4.3. eduBITES points out that restrictions or impairments of the services can arise that are outside the control of eduBITES. This includes in particular actions of third parties not acting on behalf of eduBITES, technical conditions that are not within eduBITES’s control, as well as force majeure. The hardware and software used by the customer and the technical infrastructure can also affect the services provided by eduBITES. To the extent that such circumstances affect the availability or functionality of the services provided by eduBITES, this does not affect the conformity of the service provided under the contract.

5. Customer’s Usage Rights

5.1. The services and all information contained therein, apart from customer data, are the intellectual property of or licensed to eduBITES. eduBITES grants the customer a revocable, simple, non-transferable, and non-sublicensable right to use the respective services for their own business purposes in connection with the subject of the contract. This usage right is limited to the duration of the contract and refers exclusively to the current state and scope of the service provided by eduBITES during the contract term. The customer does not acquire any further rights, such as to the underlying software applications or operating software of the respective service or provided/licensed learning content. The customer may only use the services for their own business purposes and only through their own employees.

5.2. As long as eduBITES provides update, upgrade, and new version deliveries during the contract term, the usage right regulated in clause 5.1 applies to these in the same way. eduBITES is not obliged to provide update, upgrade, and new version deliveries of the services unless this is necessary to rectify defects or is otherwise agreed in writing in these GTC or the contract.

5.3. Unless otherwise agreed in writing, all rights to customizations or modules developed within the services at the customer’s request or on the customer’s behalf belong to eduBITES, and eduBITES is entitled to offer these new developments to other customers as well. Excluded are the rights to customer-specific content defined in clause 5.4.

5.4. Customer-specific content refers to content that is specifically developed or processed for the customer based on the customer’s content via the platform or within the scope of an order by eduBITES. The following rights apply to this content:

5.4.1. Custom Avatars: The custom-built avatar of the Customer belongs exclusively to the Customer; eduBITES will not use the Customer’s avatar for any other purposes than those specified in the written agreement. In order to personalize Customer content or run, produce and store custom avatars for the duration of the contract, eduBITES might use third-party platforms. Before an avatar is recorded, the Customer will need to agree to the third-party’s terms of service. For these reasons, the Customer grants eduBITES non-exclusive rights to store the Customer’s avatar on our Learning Experience platform and on the third-party’s platform. After the contract expires, or upon the Customer’s request, the Customer’s avatar will be deleted from the Learning Experience Platform and on the third-party platform.

5.4.2. The customer retains all copyrights, usage and exploitation rights to the specific learning materials and content created by the customer or by eduBITES on behalf of the customer. This also includes all materials provided by the customer for the creation of the learning content as well as all preliminary and intermediate products created in the process. These contents may not be used by eduBITES or third parties without the express consent of the customer. The customer is entitled to provide these contents to other companies and has the right to delete all created content at any time.

5.4.3. The customer consents to eduBITES transmitting and processing personal data and provided learning content exclusively for production purposes to third parties. Upon the customer’s request, all relevant data will be promptly deleted by the contractor and involved third parties. eduBITES ensures that the contractual agreements are adhered to when transmitting data to third parties.

5.5. The use of the services is only permissible for the customer within the scope described in clauses 5.1, 5.2, and 5.3. In particular, the customer is prohibited from unauthorized reproduction, modification, decompilation of the source code, or making the software readable or usable in any other way, making software publicly accessible, renting, transferring to third parties, exploiting, or using for third-party purposes. §§ 69d and 69e UrhG remain unaffected by this regulation.

5.6. eduBITES software allows data exchange with specific third-party systems (“Third-party systems”) via interfaces (“Integrations”). An overview and description of all available integrations are provided on the eduBITES website. The availability of integrations for the customer may depend on the chosen software plan and additional apps. eduBITES reserves the right to make changes to the integrations, especially if they are changed or discontinued by the third-party system providers.

5.7. eduBITES reserves the right to claim damages if the customer culpably allows unauthorized third parties to use the respective services or software belonging to eduBITES. If unauthorized use is granted to third parties, the customer must promptly provide all necessary information to assert claims against the third party upon request from eduBITES.

6. General Obligations of Customers

6.1. The customer is responsible for their connection to the required telecommunication facilities and through these to the services, the provision of necessary interfaces and technical requirements for the use of the services, and the selection of user settings to enable the smooth use of the services. eduBITES is not obliged to check whether the technical requirements for using the services are met by the customer.

6.2. The customer must provide eduBITES with a contact person for the duration of the contract term, with whom essential administrative interactions between eduBITES and the customer take place (“Administrator”). The administrator does not necessarily have to be a user of the services. The customer must promptly notify eduBITES of any change in the administrator.

6.3. The customer is obligated to keep their assigned credentials for accessing the services confidential, protect them from third-party access, and not pass them on to unauthorized third parties. In case of loss or knowledge of unauthorized third parties of access data, the customer must promptly inform eduBITES in text form so that eduBITES can arrange for the access to be blocked if necessary. The customer is responsible for all actions taken using their credentials.

6.4. The customer will not use or let others use the services unlawfully or abusively, particularly not for conducting transactions that violate legal regulations. Customers with proven unethical business practices are also excluded from using the services.

6.5. The customer acknowledges that the effectiveness of the Knowledge Transformation Tools and Knowledge Capture Suites provided by eduBITES significantly depends on the quality and relevance of the content provided by the customer and its employees. eduBITES offers tools for knowledge capture and transformation that support decision-making but do not replace professional advice. Thus, eduBITES is not liable for decisions made based on the generated content and analyses.

6.6 Ethical Guidelines for Content Production:

• Legality and Decency: Customers must ensure that their content is not illegal, harmful, abusive, defamatory, or discriminatory and does not promote violence, harassment, or hate speech.
• Accuracy and Honesty: Customers must ensure that they do not create misleading or false information and clearly indicate fictional content.
• Intellectual Property: Customers must respect intellectual property rights and not use copyrighted materials without permission.
• Respect Privacy: Customers must ensure that content does not infringe on the privacy of individuals without consent.

6.7. The customer is solely responsible for complying with their data protection obligations and compliance requirements, particularly regarding the processing of personal data and critical business information. The customer ensures that their data is processed and stored lawfully, as necessary, and grants the relevant authorities the required access.

7. Breach of Customer Obligations, Blocking, and Deletion of Access

7.1. eduBITES may block the customer’s access to the services in whole or in part or delete the customer’s account at any time if (i) the customer breaches their contractual obligations, especially those under clause 6, (ii) there is a risk of damage or impairment to eduBITES’s systems, data, or services or those of another eduBITES customer, or a risk of harm to the public, or (iii) circumstances arise that entitle eduBITES to terminate the contract without notice. In the case of chargeable services, blocking is also possible if the customer is in default of payment.

7.2. If the blocking is based on a breach of contract by the customer, access will only be restored once the breach is permanently rectified or the risk of repetition is excluded by a penalty-bound cease and desist declaration. eduBITES is not obliged to restore access if this is unreasonable, for example, if the reason for the blocking simultaneously entitles eduBITES to terminate the contract without notice.

7.3. A blocking or deletion based on a breach of contract by the customer does not entitle the customer to withhold payments or assert claims for damages against eduBITES.

8. Remuneration

8.1. eduBITES offers the customer either free or chargeable use of the services, depending on the respective services and their scope of performance. Details of the respective scope of performance and pricing structure can be found in the offers or on the eduBITES website.

8.2. The remuneration is due in advance for the respective contract term.

8.3. Unless otherwise agreed in writing, all prices are net prices plus the applicable statutory VAT.

8.4. A separate written agreement between the parties is required for individually agreed services of eduBITES.

8.5. Payment requests are sent via email to the customer.

8.6. Payment by the customer is made by bank transfer.

8.7. The customer agrees that email (using an email address provided by the customer) will be used to send invoices and payment reminders.

8.8. If remuneration is agreed, eduBITES may temporarily suspend service delivery in case of payment default until payment is made.

8.9. eduBITES is entitled to adjust the remuneration once per calendar year at its reasonable discretion, taking into account the customer’s interests in its cost development. eduBITES will inform the customer of such price adjustments in text form. The price adjustment is deemed accepted by the customer if they do not object in text form within six (6) weeks of receiving the change notice and continue to use the respective service. eduBITES will inform the customer of this consequence in the change notice. If the customer objects to the price adjustment, both parties have a special termination right with effect from the announced date of the new prices, which must be exercised within one (1) month after receipt of the objection.

9. Performance Disruptions, Force Majeure

9.1. eduBITES is released from its performance obligation if non-performance is due to force majeure or other unforeseen and not attributable circumstances (e.g., war, strike, natural disasters, water ingress, system failures on the internet, or sabotage by malware). The release from the performance obligation also applies to delays due to circumstances within the customer’s responsibility, such as late fulfilment of customer obligations or lack of availability of customer IT facilities with associated interfaces.

9.2. The release from the performance obligation applies for the duration of the hindrance plus a reasonable start-up time. If the hindrance lasts longer than two (2) months, both parties are entitled to terminate the contract regarding the affected service after setting a reasonable grace period. Claims for damages or reimbursement of expenses against eduBITES are excluded in such cases.

9.3. The parties will inform each other of the occurrence of a force majeure event or other circumstances mentioned in this clause 9 immediately upon becoming aware of it.

10. Defects Liability

10.1. The customer is obliged to report defects (e.g., functional failures, malfunctions, or impairments of the services) to eduBITES immediately and as precisely as possible in text form to the support email address support@edubites.com. Furthermore, the customer supports eduBITES appropriately in analyzing and remedying defects and promptly provides access to documents that provide details on the occurrence of the defect.

10.2. For update, upgrade, and new version deliveries, defect claims are limited to the innovations of the update, upgrade, and new version deliveries compared to the previous version status.

10.3. Defect claims are excluded if the customer or third parties make changes to the functionalities of the services without prior authorization from eduBITES or use the services in a manner not intended or in a different operating environment, including user errors, non-compliance with application instructions, use of incorrect or missing processing data. This does not apply if the customer proves that the defects are unrelated to such circumstances. If defect analysis is significantly impeded by such circumstances, the customer bears the additional costs incurred.

10.4. In the case of defects attributable to eduBITES, the statutory regulations generally apply. §§ 536b and 536c BGB apply. The application of § 536a para. 1 BGB is excluded as far as the provision provides for strict liability. The application of § 536a para. 2 BGB is also excluded.

10.5. In the case of insignificant impairment of the value and/or suitability of the services, the customer has no defect liability claims.

11. Liability Scope

11.1. eduBITES is liable to the customer in all cases of contractual and non-contractual liability in the event of intent and gross negligence in accordance with the statutory provisions for damages or reimbursement of futile expenses.

11.2. In other cases, eduBITES is liable – unless otherwise regulated in clause 11.3 – only for the breach of a contractual obligation, the fulfilment of which enables the proper execution of the contract in the first place and on the compliance of which the customer regularly relies (so-called cardinal obligation), limited to the compensation for the foreseeable and typical damage. In all other cases, the liability of eduBITES is excluded, subject to the provision in clause 11.3.

11.3. The liability of eduBITES for damages resulting from injury to life, body, or health, under the Product Liability Act, and to the extent of a guarantee assumed by eduBITES, remains unaffected by the above limitations and exclusions of liability.

11.4. eduBITES’ liability for damages resulting from data loss is excluded to the extent that the damage is based on the customer’s failure to perform regular and proper data backups within their responsibility and thus ensure that lost data can be restored with reasonable effort.

11.5. Claims for damages expire within one (1) year from the date the customer becomes aware of or grossly negligent ignorance of the circumstances giving rise to the claim, but no later than one (1) year after the end of the year in which the claim arose. This does not apply in cases of intent, gross negligence, damages resulting from injury to life, body, or health, and claims under the Product Liability Act.

11.6. To the extent that the liability of eduBITES is excluded or limited under the contract and/or these GTC, this also applies to the personal liability of eduBITES’s legal representatives and bodies, its employees, and its vicarious agents.

12. Data Protection, Information Security

12.1. Both parties undertake to comply with all applicable legal data protection regulations. With the services, eduBITES provides the technical prerequisite for data processing. eduBITES has no own evaluation or decision-making scope regarding personal data from the customer’s area of responsibility within the scope of software processes.

12.2. To the extent that the customer enters personal data, including the data of their employees and customers (“customer data”), on the platform as part of the use of the services, the customer bears sole responsibility for the legality of the collection and processing of the customer data under data protection law. The customer indemnifies eduBITES from all actual and alleged claims of third parties, including the costs of legal prosecution/defense, based on the customer’s fault in violating applicable legal data protection regulations regarding customer data.

12.3. Further information on data protection can be found in the currently applicable data protection notices of eduBITES on the corresponding website.

12.4. eduBITES is entitled to anonymize or aggregate the data received from the customer during the use of the services so that the identification of individual affected persons is no longer possible and to use this data in this form, among other things, to optimize the services and their functions, for reporting and benchmarking purposes, and to transmit it to third parties (in particular to affiliated companies under §§ 15 ff. AktG and other customers). The parties agree that anonymized or aggregated data as described above are no longer considered customer data.

12.5. The use of the services may require eduBITES to process personal data on behalf of the customer. For this, the conclusion of a separate agreement on the processing of personal data is necessary. The parties confirm that the customer is the responsible party for all data they upload and can correct or delete it if necessary. Since eduBITES processes the data on behalf of and only under the customer’s instructions, eduBITES is always a processor. The parties conclude a data processing agreement (“DPA”) as an appendix to these GTC.

13. Contract Duration, Termination

13.1. Unless otherwise agreed in writing, the contract is concluded as a subscription for a term of twelve (12) months. The contract automatically renews for 12 months unless it is terminated in due time at the end of the previous contract term. The customer and eduBITES can terminate the contract with a 14 days’ notice.

13.2. If the customer uses the respective services free of charge, the contract is concluded indefinitely, subject to a written agreement, and can be terminated by either party at any time without notice.

13.3. If a customer switches to a usage model with greater functionality during the contract term and/or acquires additional licenses, the prorated fee for the remaining term will be offset against the payment already made for the previous usage model.

13.4. The right of both parties to terminate the contract without notice for good cause remains unaffected, particularly if the other party persistently breaches essential contractual obligations and fails to remedy the breach despite a warning with a reasonable grace period, or if a significant deterioration or endangerment of the other party’s assets occurs. Additionally, eduBITES is entitled to terminate the contract without notice if the customer is in arrears with the payment of two (2) consecutive monthly fees or an amount equal to two (2) monthly fees within a period of more than two (2) months.

13.5. Terminations can be made by email to cancellation@edubites.com.

14. Referencing

14.1. The customer agrees that eduBITES may refer to them as a reference customer in press releases, other marketing materials, and on its website. The customer may object to the reference in writing (an email is sufficient). The customer’s company logo may also be used. In this regard, the customer grants eduBITES a simple, terminologically and spatially unlimited, non-transferable right of use regarding the necessary name and trademark rights.

15. Final Provisions

15.1. The transfer of the contract or individual rights or obligations from it by the customer to third parties requires the prior written consent of eduBITES. § 354a HGB remains unaffected.

15.2. The customer’s set-off is only permissible with an undisputed or legally established claim from eduBITES. The same applies to the assertion of rights of retention, whereby the counterclaim must also be based on the same contractual relationship.

15.3. The place of performance for the contract is Berlin.

15.4. The contractual and legal relationship between the parties is governed exclusively by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

15.5. If 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, the Berlin Regional Court has exclusive jurisdiction for all disputes arising from and in connection with the contract.

15.6. Unless otherwise explicitly stipulated in these GTC, all declarations and notifications within the scope of the contractual relationship and business relationship with the customer must be made in writing (including by fax) or electronically.

Amendments or supplements to the contract between the parties, including the agreement to waive this written form requirement, must be made in writing.

15.7. Should individual provisions of the existing contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the contract. The parties will endeavour to replace the invalid or unenforceable provision with a valid and enforceable regulation that comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same applies in the event of a gap in the contract.