AGB
General Terms and Conditions
of
doinstruct Software GmbH
Rheinstraße 10,
49090 Osnabrück
1. Scope of General Terms and Conditions, Conclusion of the Agreement
1.1 These General Terms and Conditions ("GTC") together with the order form and its Annexes conclusively govern the contractual relationship between us, doinstruct software GmbH, Rheinstrasse 10, 49090 Osnabrück, registered with the commercial register of the local court of Osnabrück under HRB 216222, ("doinstruct") and the customer ("Agreement").
1.2 By sending an order form to the customer, doinstruct submits a binding offer to conclude an Agreement. By returning the signed order form, the customer accepts doinstruct's offer. The customer may use an electronic signature tool (e.g., PandaDoc) to sign the order form.
1.3 In the event of contradictions between these GTC and the order form and its Annexes, the order form and its Annexes shall take precedence over these GTC.
1.4 The customer is an entrepreneur within the meaning of Section 14 para. 1 of the German Civil Code (BGB), i.e., a natural or legal person or a partnership with legal capacity that is exercising its commercial or independent professional activity when concluding this Agreement. The customer confirms this by signing the order form.
1.5 The customer's terms and conditions shall not apply, even if doinstruct does not expressly object to their application in a specific case.
2. Subject Matter of the Agreement
2.1 doinstruct offers a digital platform for the onboarding and training of employees, in particular by means of video-on-demand ("Online Training Service"). The Online Training Service enables employees to independently access and complete topic-related content and tests using a web app via the internet, internet-enabled televisions, computers, smartphones and/or other internet-enabled devices ("End Devices").
2.2 The subject of this Agreement is the provision, for a fee and limited to the term of this Agreement, of access to the Online Training Service for Authorized Users via Software as a Service (SaaS) through a cloud-based web app.
2.3 The customer selects relevant training content provided by doinstruct in a joint kick-off meeting with doinstruct after conclusion of this Agreement ("Training Content"). During the term of this Agreement, the parties shall regularly agree on the Training Content, its selection and any necessary updates to the Training Content. Section 3.5 remains unaffected.
2.4 In addition to the Training Content, the customer or its Authorized Users may also use Customer Content (as defined in Section 4.2) uploaded by the customer to the Online Training Service in the Online Training Service.
3. Services of doinstruct, Reservation of the Right of Amendment
3.1 For the term of this Agreement, doinstruct grants the customer access to the then-current version of the Online Training Service and the Training Content for the number of authorized users agreed in the order form ("Authorized Users") via a web app.
3.2 Authorized Users may be managing directors, board members, and employees of the customer or of affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG) as well as subcontractors, temporary workers, and freelancers engaged by the customer. The customer shall be liable for any breaches committed by Authorized Users to the same extent as for its own breaches, regardless of whether the Authorized Users are managing directors, board members, or employees of the customer or of affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG) or subcontractors, temporary workers, or freelancers engaged by the customer.
3.3 doinstruct will send the customer an individual access link for each Authorized User after conclusion of this Agreement. The prerequisite for this is that the customer has previously provided doinstruct with the following information relating to the respective Authorized User:
(a) first and last name;
(b) personnel number;
(c) first working day; and
(d) language.
If the customer voluntarily provides doinstruct with the email address or telephone number of an Authorized User, the access link can be sent to that Authorized User not only as a QR code, but also by email or SMS.
3.4 doinstruct intends to use state-of-the-art technology and is authorized to regularly carry out or introduce updates, new versions or upgrades of the Online Training Service, implement new features or make changes to existing features in order to improve the Online Training Service and in particular to adapt it to technical developments, a changed legal situation or new commercial requirements.
3.5 doinstruct intends to keep the Training Content up to date and is authorized to regularly update the Training Content, in particular to adapt it to new legal requirements or new specifications or recommendations of the statutory accident insurance funds (Berufsgenossenschaften) or to improve its didactic quality.
3.6 doinstruct is not responsible for customizing the Online Training Service to the individual needs or IT environment of the customer, unless the parties have agreed otherwise.
3.7 doinstruct merely provides the IT functions of the Online Training Service. doinstruct is not responsible for establishing and maintaining the data connection between the customer's IT systems and the router output of the doinstruct data center or the data center of its subcontractor via whose server the Online Training Service is operated ("Transmission Point"). doinstruct is not responsible for disruptions beyond the Transmission Point.
3.8 The provision of the necessary internet access is not part of this Agreement. The customer is responsible for procuring and maintaining the necessary hardware and connections to public telecommunications networks that are technically required to access the Online Training Service and the Training Content. doinstruct is not liable for the security, confidentiality and integrity of data communication that takes place via third-party communication networks. doinstruct is also not liable for disruptions to data transmission caused by technical errors or configuration problems on the part of the customer.
3.9 The video quality (Wiedergabequalität) of the Training Content may vary depending on the terminal equipment used by the Authorized User and is influenced by various factors, including the Authorized User’s location, available bandwidth, and Internet connection speed. doinstruct assumes no liability for the video quality (Wiedergabequalität) of the Training Content, as this is not part of the Online Training Service.
3.10 doinstruct is free to provide its services in accordance with the provisions of this Agreement through vicarious agents or subcontractors.
4 Rights of Use, Scope of Use
4.1 doinstruct hereby grants the customer a simple, non-sublicensable, non-transferable, and revocable right to use the Online Training Service and the Training Content for the term of this Agreement, limited to the number of Authorized Users agreed in the order form.
4.2 The customer grants doinstruct a non-exclusive, non-sublicensable and non-transferable right to use the data and content entered by the customer in the Online Training Service, in particular learning content created by the customer, ("Customer Content") for the fulfilment of this Agreement in accordance with the provisions and for the term of this Agreement.
4.3 The customer guarantees that it will only upload Customer Content to the Online Training Service that
(a) does not infringe the third party rights and which the customer is authorized to use without restriction;
(b) complies with applicable law, in particular does not contain any criminal or otherwise unlawful content; and
(c) does not contain viruses or other malware.
The customer shall indemnify doinstruct in full in the event of a claim by a third party due to a breach of these obligations.
4.4 The Online Training Service and all Training Content are intended exclusively for the internal use of the customer, its affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG) and its subcontractors, temporary workers, and freelancers and may only be used by Authorized Users. The customer is not authorized to make any further use of the Online Training Service and the Training Content.
4.5 In the event of misuse of the Online Training Service or the Training Content by the customer, doinstruct is entitled to terminate this Agreement extraordinarily and without notice. Further legal claims, in particular for damages, remain unaffected.
4.6 Misuse occurs in particular if the customer
(a) reproduces, distributes, edits or otherwise modifies, publicly demonstrates, licenses, sells or otherwise commercially uses, decompiles or reverse engineers the Online Training Service or Training Content contrary to the provisions of this Agreement;
(b) stores Training Content;
(c) modifies, removes or circumvents the copy protection of the Online Training Service;
(d) uses the Online Training Service to distribute content that violates third party rights (e.g., copyrights, personal rights) and/or contains criminal or otherwise unlawful content;
(e) uploads Customer Content to the Online Training Service whose use violates applicable law, official or court orders, third-party rights or agreements with third parties; or
(f) uploads Customer Content to the Online Training Service that contains viruses or other malware.
4.7 Misuse by Authorized Users shall be attributed to the customer.
4.8 doinstruct is entitled to monitor and, if necessary, enforce the contractual use of the Online Training Service through appropriate technical measures, e.g., by restricting or blocking access or deleting Customer Content that the customer has posted in violation of applicable law or this Agreement. doinstruct also reserves the right to change the access data of the customer and/or Authorized Users for security reasons; in such a case, doinstruct will inform the customer immediately of such a change in access data.
5 Customer’s Obligations
5.1 The customer is obliged,
(a) not to pass on the transmitted access data to third parties and to protect and store them in accordance with the state of the art against access by third parties;
(b) to inform doinstruct immediately in text form (email will suffice) in the event of suspected misuse of the Online Training Service or Training Content.
5.2 The customer shall ensure that each Authorized User is made aware of the obligations specified in Section 5.1 and complies with them.
6 Remuneration, Payment Terms
6.1 The customer shall pay doinstruct the subscription fee and the platform fee as specified in the order form.
6.2 From the start of the second contract year, the subscription fee and the platform fee increase automatically by 3% each year, based on the subscription fee and platform fee applicable at the time.
6.3 The subscription fee and the platform fee are charged for the first time upon conclusion of this Agreement. doinstruct will invoice the customer annually at the beginning of each new contract year by issuing an invoice showing VAT. The subscription fee and the platform fee are due upon receipt of the corresponding invoice by the customer and payable within 14 days.
7 Availability of the Online Training Service, Rectification of Disruptions
7.1 doinstruct grants a minimum technical availability of the Online Training Service of 99% on an annual average. Availability is defined as the ability of the customer and Authorized Users to use all the main functions of the Online Training Service. Maintenance times, times of disruption while adhering to the rectification time and interruptions due to updates shall be considered times of availability of the Online Training Service. Times of insignificant disruptions are not taken into account when calculating availability.
7.2 doinstruct will carry out maintenance on the Online Training Service and install updates at its own discretion and inform the customer of this in good time. Maintenance and updates will generally be carried out outside the customer's normal business hours, unless maintenance has to be carried out at a different time for compelling reasons.
7.3 The customer must immediately report any disruptions detected to the following contact details in text form (email will suffice). As far as technically possible, doinstruct will rectify disruptions Monday to Friday (excluding national holidays) between 9:00 a.m. and 6:00 p.m. ("Service Hours").
Contact Details:
doinstruct software GmbH
Rheinstraße 10
49090 Osnabrück, Germany
Email: post@doinstruct.com
7.4 doinstruct divides disruptions that occur into the following categories at its reasonable discretion, taking into account the interests of the customer:
(a) Serious disruptions: Disruptions that make it impossible to use the Online Training Service as a whole or a main function of the Online Training Service.
(b) Significant disruptions: Disruptions to the main or secondary functions of the Online Training Service that do not prevent use of the Online Training Service, but make it significantly more difficult and are not merely insignificant.
(c) Insignificant disruptions: Disruptions that do not prevent the use of the Online Training Service, but impair it, albeit only insignificantly.
7.5 doinstruct shall rectify disruptions within the following rectification times (each a "Rectification Time"):
(a) Serious disruptions: without undue delay, even outside Service Hours;
(b) Significant disruptions: within twelve hours during Service Hours.
The respective Rectification Time begins upon receipt of the disruption report and only when the customer has reported the disruption of the Online Training Service to doinstruct in text form (email will suffice) within the Service Hours to the above-mentioned contact details. If doinstruct determines that it cannot rectify a disruption within the applicable Rectification Time, doinstruct shall immediately inform the customer in text form (email will suffice) of the additional time required to rectify the disruption.
7.6 The rectification of minor disruptions is at the discretion of doinstruct.
8 Warranty
8.1 doinstruct warrants the functionality and availability of the Online Training Service in accordance with the provisions and for the term of this Agreement and shall maintain the Online Training Service in a condition suitable for use in accordance with this Agreement.
8.2 With regard to the provision of access to the Online Training Service, the statutory warranty provisions of tenancy law (Sections 535 et seq. of the German Civil Code (BGB)) apply.
8.3 The customer must notify doinstruct without undue delay of any defects discovered by it in text form (email will suffice).
8.4 The warranty for only insignificant reductions in the suitability of the service is excluded.
9 Limitation of Liability
9.1 doinstruct shall be liable without limitation in the event of intent, gross negligence or culpable injury to life, limb or health.
9.2 Notwithstanding the cases of unlimited liability in Section 9.1, doinstruct shall only be liable for slightly negligent breach of duty in the event of breach of essential contractual obligations, i.e., obligations whose fulfilment is essential for the proper execution of this Agreement or whose breach threatens the achievement of the purpose of this Agreement and on whose compliance the other party may regularly rely, but limited to the damage foreseeable at the time of conclusion of this Agreement and typical for this Agreement.
9.3 Strict liability in accordance with Section 536a para. 1 of the German Civil Code (BGB) for defects that already existed when this Agreement was concluded is excluded, unless the defect relates to an essential feature of the Online Training Service.
9.4 doinstruct shall only be liable for the loss of data in accordance with the above paragraphs if the customer could not have prevented this loss by taking suitable data backup measures.
9.5 The above limitations of liability shall not apply in the event of the assumption of express guarantees or for claims due to the absence of warranted characteristics. Liability under the Product Liability Act remains unaffected.
9.6 doinstruct accepts no liability for cloud failures.
9.7 doinstruct accepts no liability for Customer Content.
9.8 This liability regulation also applies in favor of the legal representatives and vicarious agents of doinstruct if claims are asserted directly against them.
10 Statute of Limitations
Customer claims arising from the breach of an obligation that does not consist of a defect shall become time-barred within one year of the start of the statutory limitation period, except in cases of intent or gross negligence. This does not apply if the damage suffered by the customer is personal injury. Claims for personal injury shall become time-barred within the statutory limitation period.
11 Confidentiality
11.1 "Confidential Information" means all information, data, know-how and expertise of a scientific, technical, engineering, operational, marketing, commercial or economic nature, whether in digital or other recorded form, which is marked as confidential or by its nature confidential and is disclosed or made available to the Recipient by the disclosing party.
11.2 "Recipient" means any party to the extent it receives Confidential Information from the disclosing party.
11.3 "Authorized Recipient" is the Recipient, its bodies, employees and agents as well as the bodies, employees and agents of affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG), in each case to the extent necessary to fulfil the contractual obligations arising from this Agreement and to use the Online Training Service (= "Need-to-Know-Prinzip").
11.4 "Employees" are employees, temporary workers and freelancers.
11.5 The Recipient undertakes,
(a) to treat all Confidential Information as strictly confidential and not to disclose it to third parties (with the exception of the Authorized Recipients) without the prior consent of the disclosing party in text form;
(b) to use the Confidential Information only for the purpose of fulfilling the contractual obligations under this Agreement;
(c) to take reasonable precautions, at least those customary in the market, to protect Confidential Information from loss and unauthorized access and to take at least those precautions by which the Recipient protects particularly sensitive information about its own business; and
(d) promptly notify the disclosing party if the Recipient learns that Confidential Information has been disclosed to or obtained by a third party (except as permitted under this Agreement).
11.6 The obligations set out in Section 11.5 shall not apply to the extent
(a) the disclosing party has given its prior consent in text form to the disclosure in the specific case;
(b) information was generally known or generally accessible to the Recipient prior to its disclosure or which becomes public without breach of confidentiality obligations;
(c) information was already known to the Recipient prior to its disclosure and for which it can be proven that no confidentiality obligations were breached;
(d) information was provided to the Recipient on a non-confidential basis by a source other than the disclosing party or its professional advisors, provided that the Recipient did not know and could not reasonably have known at the time of disclosure that such source was bound by a confidentiality agreement with the disclosing party;
(e) an Authorized Recipient is required to disclose Confidential Information by mandatory law or court order and/or governmental decision; or
(f) the disclosure is made in strict compliance with the provisions of applicable mandatory law that expressly authorizes the disclosure.
11.7 The Recipient shall ensure that each Authorized Recipient who receives Confidential Information is made aware of the terms of this confidentiality obligation (prior to the disclosure of the Confidential Information), with the exception of Authorized Recipients who are consultants who are bound to professional secrecy by law. The Recipient shall be liable for breaches of this confidentiality obligation by its Authorized Recipients in the same way as for its own breaches.
11.8 The obligations under Section 11 shall continue to apply for a period of three years after termination of this Agreement. Statutory provisions on the protection of trade secrets shall remain unaffected.
12 Data Protection
12.1 The parties shall comply with the applicable data protection provisions applicable to them.
12.2 The Parties hereby conclude the Data Processing Agreement contained in Annex 1.
13 Naming as Reference Customer
13.1 doinstruct is authorized to name the customer as a reference customer publicly or to third parties. The customer may revoke its consent in text form at any time. In the event of revocation, doinstruct remains entitled to use advertising material that has already been produced.
13.2 The customer may also be named as a reference customer online, for example on doinstruct's company website, and including the presentation of the customer's company logo. For this purpose, the customer grants doinstruct a non-exclusive, non-transferable right of use, unlimited in terms of time and place, with regard to the name and trademark rights required for this purpose.
14 Term
14.1 This Agreement has a fixed term as specified in the order form ("FixedTerm"). The term of this Agreement shall automatically renew for successive one-year terms upon the expiration of the Fixed Term, unless either party terminates this Agreement with at least six months prior notice before the end of then-current term.
14.2 The right to terminate without notice for good cause remains unaffected. Good cause for doinstruct shall exist, in particular, if the customer breaches its obligations under Sections 5 and 11.
14.3 Terminations must be made in text form.
15 Final Provisions
15.1 The customer shall only have a right of set-off, reduction and/or retention vis-à-vis doinstruct if its counterclaim has been legally established, is undisputed or has been recognized by doinstruct. Furthermore, the customer is only authorized to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship. The customer's right to reclaim remuneration not owed remains unaffected.
15.2 There are no verbal or written ancillary agreements to this Agreement. Amendments to this Agreement and its Annexes must be made in text form. This also applies to the amendment of this form requirement.
15.3 This Agreement shall be governed by German law, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
15.4 The parties agree that Osnabrück shall be the exclusive place of jurisdiction for all disputes arising from or in connection with this Agreement.