THESE
GENERAL TERMS AND CONDITIONS
CONCERNING THE PROVISION OF THE “EDUDIP APPLICATION”
FORM PART OF THE AGREEMENT BETWEEN EDUDIP GMBH, JÜLICHER STRASSE 306, 52070 AACHEN, GERMANY, AND THE CUSTOMER NAMED IN THE AGREEMENT. EDUDIP GMBH AND THE CUSTOMER MAY HEREINAFTER BE REFERRED TO INDIVIDUALLY AS THE “PARTY” AND COLLECTIVELY AS THE “PARTIES”. ALL TERMS USED IN THESE GENERAL TERMS AND CONDITIONS SHALL HAVE THE MEANING GIVEN TO THEM IN THE FOLLOWING OVERVIEW.
1. Subject matter and scope of application
1.1 Subject matter of these General Terms and Conditions. The General Terms and Conditions contain the terms and conditions for the provision and use of the edudip Application and the associated Services of edudip GmbH for the Customer.
1.2 Scope. Subject to the terms of the Agreement, edudip GmbH will (a) provide the Customer with the edudip Application for the purpose of conducting Webinars to the extent of the agreed Tariff; (b) provide the Services within the scope of the agreed Packages and the agreed individual Services, including Scheduled Maintenance and Emergency Maintenance Work; and (c) subject to Availability, grant the Customer a non-exclusive, non-transferable right to use the edudip Application exclusively for the Purpose, all items (a) to (c) being described in more detail below and in particular in the Agreement and the Documentation. edudip GmbH exclusively provides the SaaS Infrastructure and the edudip Application for conducting the Webinars; the Customer remains responsible for the content of the Webinars, related documents and stored data. edudip GmbH may use third parties to provide the Services.
1.3 Details of the cooperation. The Parties shall agree on the details of their cooperation by duly executing an Agreement concluded in writing or by electronic means, which shall specify, inter alia, the remuneration to be paid by the Customer, the date of commencement of performance and any other due dates. Agreements shall be concluded in accordance with the procedure described in Clause 2 of these General Terms and Conditions.
1.4 Contracts between Customers and Webinar Participants. While the Customer and Webinar Participants interact directly via the edudip Application, edudip GmbH is not a party to any contractual relationship between the Customer and Webinar Participants with respect to the Webinars offered by the Customer via the edudip Application.
1.5 Affiliated companies of the Customer. Affiliated companies of the Customer may only obtain Services from edudip GmbH by concluding an Agreement with edudip GmbH. This creates a new and separate Agreement between the Affiliated company of the Customer and edudip GmbH.
2. Conclusion of Agreements
2.1 Conclusion of Agreement. An Agreement is concluded (a) by the signature of both Parties on a contract executed in paper form; or (b) by the steps described below in the case of a contract concluded in electronic commerce: The presentation on the website of edudip GmbH does not constitute a legally binding offer to the Customer but is merely an invitation to the Customer to submit an offer (invitatio ad offerendum). The submission of an offer requires the registration of the Customer. After successful registration by filling out the registration form, the Customer can select a free trial period for 14 (fourteen) days, the free version or various chargeable Tariffs. Only by clicking the “Book now with costs” button in the last step of the process does the Customer submit a binding offer to order the Services. The free trial period ends automatically and does not have to be cancelled. Extraordinary termination rights remain unaffected during the test phase.
Immediately after sending the booking, the Customer will receive a confirmation of receipt, which at the same time represents the acceptance of the contract offer by edudip GmbH. The Customer should therefore also regularly check the SPAM folder of his email inbox.
2.2 Customer profiles. Once registration has been completed, a profile will be created for the Customer with which the Customer can log in to the edudip Website and the edudip Application. Customer profiles can also be created by edudip GmbH for the Customer by entering the data provided. A Customer profile is a prerequisite for the use of the edudip Application.
2.3 Storage of the text of the Agreement. The provisions of the Agreement with details of the ordered Services including these General Terms and Conditions will be sent to the Customer in writing for the purpose of permanent storage upon acceptance of the contractual offer or upon notification thereof. No further storage of the contractual provisions by edudip GmbH for the Customer will take place.
3. Subject of the edudip Application
3.1 Services of edudip GmbH.
(1) Tariffs, Packages and individual Services. edudip GmbH offers the edudip Application in different Tariffs and with different terms. The Tariffs differ in the scope of certain functions of the edudip Application and are shown on the website and in the Documentation of edudip GmbH. It is possible to switch between the Tariffs during the Term of the Agreement. An upgrade is possible with immediate effect, a downgrade at the end of the contract Term.
The Customer can book further Services of edudip GmbH as individual Services and in the form of Packages. These Services adapt and supplement the edudip Application and support the Customer in the preparation and implementation of Webinars.
(2) Freemium area, Beta versions. edudip GmbH offers the edudip Application for use free of charge to a limited extent compared to the fee-based Tariffs (Freemium area) and makes it possible to use additional functionalities still under development that are not included in the agreed Tariff (Beta versions) at no additional cost. The functional areas of the edudip Application made available in the Freemium Area may be a Beta version or, if applicable, an outdated version of the edudip Application. The provision of the edudip Application Freemium area or Beta versions does not entitle Customers, users of the freemium area and other interested parties to the use and Availability of the freemium area or Beta versions of the edudip Application. edudip GmbH reserves the right to modify and/or block the Freemium Area or Beta versions for use at any time.
(3) Preparation of Webinars. In preparation for Webinars, edudip GmbH may – subject to the Customer ‘s cooperation – (a) set up and design the Landing Page (b) conduct a basic training course; (c) conduct a technology check; and/or (d) provide the Customer with further support, in each case if and to the extent that Services under letters (a) to (d) have been expressly agreed between the Parties.
(4) Customer’s cooperation; conditions of use. If applicable, the Customer will provide edudip GmbH with all information and materials in the agreed format which edudip GmbH requires in order to provide the Services for the preparation of the edudip Application pursuant to section 3.1(3). If white labelling is booked as an individual service, the Customer will provide edudip GmbH with its name, the colors desired for the display and its logo in the form in which it is to be displayed to the Webinar Participants in the Webinar room. edudip GmbH does not provide the Customer with access software. The prerequisite for the use of the edudip Application is an internet connection and a state of the art internet browser.
(5) Rights to information and materials of the Customer. During the preparation phase and for the Term of the Agreement, the Customer grants edudip GmbH a non-exclusive, worldwide, royalty-free license to: (a) access, download and store on the SaaS Infrastructure the information and materials provided in accordance with Clause 3.1(4) or uploaded to the edudip Application by the Customer itself in the context of the preparation of Webinars; and (b) reproduce, copy, summarize and otherwise use such information and materials in order to make the edudip Application available to the Customer.
3.2 Customer ‘s rights of use. Unless otherwise specified in the Agreement, edudip GmbH grants the Customer a non-exclusive, non-transferable right to use the edudip Application and the Content in the Contractual Territory and exclusively for the Purpose from the Service Commencement Date, subject to Availability and for the Term of the Agreement. The right granted to the Customer is subject to the Customer ‘s compliance with the terms and conditions of the Agreement, in particular the restrictions on the use of the edudip Application contained in these General Terms and Conditions. All rights not expressly granted to the Customer are reserved by edudip GmbH.
3.3 Legal responsibility of the Customer.
(1) Adaptation of the edudip Application. The Customer is advised that the Customer ‘s Landing Page will be accessible on the Internet as the Customer ‘s own online service in accordance with applicable law and that – without prejudice to the warranties of edudip GmbH governed by the Agreement – it is the Customer ‘s sole responsibility to ensure that the Customer ‘s Landing Page is operated in accordance with applicable law and, in particular, that all required information is displayed for the Webinar Participants. Therefore, prior to the Service Commencement Date, the Customer will upload to the edudip Application (a) comprehensive and up-to-date information on its name, address, legal form, representatives, official registration(s) and any other information legally required to identify the Customer on the Internet; (b) accurate and up-to-date information on its availability by email and alternative contact information; and (c) comprehensive and up-to-date information on the processing of personal data of Webinar Participants or, in the case of an agreement under Clause 3.1(3), to edudip GmbH so that edudip GmbH can insert it in the relevant areas of the landing page.
(2) Updates to Customer Information. In the event of changes to the information described in Clause 3.3(1) during the Term, the Customer will immediately adjust such information within the edudip Application or, in the event of an agreement pursuant to Clause 3.1(3), inform edudip GmbH of any changes to the information described in Clause 3.3(1) so that edudip GmbH can insert the updated information in the relevant areas of the Landing Page.
(3) Disclaimer. edudip GmbH is not liable if the Customer fails to provide the Webinar Participants with correct and comprehensive information within the meaning of Clauses 3.3(1) and 3.3(2), unless such failure is due to the fact that (a) edudip GmbH has failed to transfer the Customer ‘s information to the landing page; (b) the edudip Application is technically insufficient to display the Customer ‘s information in a legally compliant manner; and/or (c) edudip GmbH has failed to provide the Customer with the necessary factual information to create such correct and comprehensive information. For the avoidance of doubt, edudip GmbH does not warrant the legal evaluation(s) of the templates provided to the Customer by edudip GmbH pursuant to clause 3.1(1) and it is the Customer ‘s sole responsibility to verify the legal requirements for the use of the edudip Application. Furthermore, edudip GmbH is not liable for any claims for injunctive relief, reimbursement of costs or damages that may be asserted against the Customer as a result of the Customer ‘s breach of its obligations under Clause 3.3(3).
4. Use and operation of the edudip Application
4.1 API interfaces.
(1) Transfer of Content. The edudip Application can be integrated into the Customer ‘s systems via an interface (API). If the API is not already part of the Package booked by the Customer, it will be booked as an individual service.
(2) Liability of the Parties for Content. In the relationship between the Parties, (a) the Customer is responsible and liable for the correctness and legality of all Content transferred from its systems to the edudip Application and made available there; and (b) edudip GmbH is responsible and liable for the unchanged provision of the API.
(3) Rights to Content. The Content incorporated from the Customer ‘s systems into the edudip Application is deemed to be Confidential information of the Customer and will not be accessed, used or disclosed by edudip GmbH unless expressly provided for in the Agreement. The Customer grants edudip GmbH a non-exclusive, worldwide, royalty-free license during the Term: (a) to access, download and store the Content in the edudip Application; and (b) to reproduce, copy, aggregate and otherwise use the Content for the purpose of making the edudip Application and the Services available to the Customer.
(4) Protection of the Content. edudip GmbH will take administrative, physical and technical security precautions to protect the security, confidentiality and integrity of the Content. These security precautions include, but are not limited to, measures to prevent unauthorized access, unauthorized use, unauthorized modification or unauthorized disclosure of Content. edudip GmbH will access the Content only as described in the Agreement: (a) to support the Customer’s use of the edudip Application and to prevent or correct technical problems; or (b) as expressly permitted in writing by the Customer. Details of the technical and organizational measures to protect the Content are set out in more detail in the Data Processing Agreement.
4.2 Adaptations of the edudip Application. Notwithstanding the Customer’s rights of use pursuant to section 3.2 of these General Terms and Conditions and edudip GmbH’s warranties, edudip GmbH reserves the right, at its sole discretion, to make any adjustments to the edudip Application that it deems necessary or useful in order to (a) (i) maintain or improve the quality or functionality of the edudip Application; (ii) strengthen the competitiveness or market for the edudip Application; or (iii) improve the cost efficiency and/or performance of the edudip Application; or (b) comply with applicable laws. edudip GmbH will inform the Customer of the implementation of such adjustments in a timely manner via the change log accessible on the website of edudip GmbH (https://www.edudip.com/changelog/) and a pop-up in the Webinar room and will provide the Customer with appropriate support in connection with such adjustments in order to ensure continuous use of the edudip Application for the Customer. Clauses 17.2 and 17.3 remain otherwise unaffected.
4.3 Services within the framework of the operation of the edudip Application.
(1) Support Services. Without prejudice to edudip GmbH’s warranty obligations under the Agreement, edudip GmbH will provide the Customer with the support Services for the edudip Application described in this Clause 4.3, the Agreement and the Service Level Agreement (SLA), including planned maintenance work and Emergency Maintenance Work. In this context, edudip GmbH will: (a) eliminate errors in the edudip Application within a reasonable period of time after their occurrence and, if applicable, receipt of the Customer’s notification; (b) provide support for the edudip Application. (b) provide the Customer with enhancements or updates to the edudip Application; (c) provide the Customer with a help desk via a dedicated email address during normal business hours; and (d) inform the Customer in advance of planned maintenance work in accordance with the Service Level Agreement (SLA) and schedule planned maintenance work as far as possible during times outside the peak usage times of its Customer base.
(2) Remote-First Approach. With regard to the support Services to be provided by edudip GmbH under the Agreement, the Parties agree on a “remote-first approach”, according to which all such Services will be provided remotely via the agreed communication channels and system access tools, interfaces or similar of the Customer and on-site support Services will only be requested by the Customer in exceptional cases and only if this is necessary with regard to the support Services themselves or other special circumstances.
4.4 Use of the edudip Application. The Customer will: (a) be responsible for all activities of all Employees that occur under its profile on the edudip Application; (b) use commercially reasonable efforts to prevent unauthorized access to its profile or use of the edudip Application, and promptly notify edudip GmbH of any such unauthorized access or use; (c) use the edudip Application only in accordance with the Documentation, the Agreement and applicable laws and governmental regulations; and (d) provide edudip GmbH with all reasonably available information if Customer becomes aware of any non-conformity of the edudip Application so that edudip GmbH can diagnose and remedy such non-conformity.
4.5 Restrictions on Use; Prohibitions on Use. Customer may not and will not: (a) license, sublicense, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party (including Affiliated companies of the Customer) the edudip Application outside of making it available to Webinar Participants for the purpose of conducting Webinars, except as expressly permitted in the Agreement; (b) modify or create derivative works based on the edudip Application or otherwise infringe edudip GmbH’s Intellectual Property Rights in the edudip Application; (c) download or otherwise copy any component of the edudip Application, other than the Content, for reproduction outside of the edudip Application; (d) reverse engineer or access the edudip Application in order to: (i) create a competing product or service; (ii) create a product that uses similar ideas, features, functions or graphics as the edudip Application; or (iii) copy any ideas, features, functions or graphics of the edudip Application; (e) send to or store in the edudip Application any infringing, obscene, threatening, defamatory or otherwise unlawful or tortious material; (f) send to or store in the edudip Application any material that contains viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the edudip Application, including but not limited to conducting denial of service attacks; and/or (h) use the edudip Application in violation of any applicable law, including but not limited to data protection laws.
4.6 Indemnification; Blocking. The Customer will indemnify and hold edudip GmbH harmless from and against all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising from (a) a claim by a third party alleging that the Customer ‘s Content infringes the Customer ‘s Intellectual Property Rights; or (b) a violation of laws and/or regulations, in particular data protection laws and export control laws; or (c) a breach by the Customer of the provisions of clauses 4.1(2)(a), 4.4 and 4.5 above. Furthermore, in such a case, edudip GmbH reserves the right to block the Customer’s access to the edudip Application if and to the extent this is necessary to protect its own interests or the legitimate interests of third parties. The rights and remedies granted to edudip GmbH under this clause 4.6 only apply if the Customer has acted with at least negligence. In the event of an indemnification obligation under this Clause 4.6, edudip GmbH will: (a) promptly notify the Customer in writing of any such claim; (b) leave the Customer in sole control of the defense and settlement of the claim; and (c) provide the Customer, at the Customer ‘s expense, with all available information and reasonable assistance.
5. Cooperation obligations of the Customer
The Customer will assist edudip GmbH as agreed in the Agreement or otherwise agreed between the Parties and, in addition, as reasonably requested by edudip GmbH. edudip GmbH is not liable for the non-performance in accordance with the Agreement to the extent that this is due to the fact that the Customer has failed to cooperate as owed. In addition, the Customer must reimburse edudip GmbH for the costs reasonably incurred by edudip GmbH as a result of the Customer ‘s failure to cooperate. This does not apply, however, to the extent that edudip GmbH has not taken the mitigation measures described below. If the Customer fails to perform the agreed acts of cooperation, edudip GmbH will (a) prove that it has informed the Customer in advance of the required cooperation; (b) inform the Customer of the failure to provide cooperation or support; and (c) make commercially reasonable efforts to avoid or mitigate the effects of such failure by the Customer on the performance of edudip GmbH.
6. Payment obligations
6.1 Payment obligations. The Customer’s payment obligations are set out in detail in the Agreement. Amounts payable on a one-off basis will be invoiced by edudip GmbH on the date specified in the Agreement, and all recurring fees payable by the Customer will be invoiced by edudip GmbH at the beginning of the initial Term of the Agreement or a renewal period. Other Services agreed as being subject to remuneration will be provided on a time and material basis at the general prices of edudip GmbH applicable at the time of assignment. All Services provided by edudip GmbH which are based on the Customer ‘s subsequent requests for changes and additions are deemed to be additional expenditure and are to be remunerated separately. All amounts stated in the Agreement are net amounts in euros (EUR).
6.2 Adjustment of the remuneration. edudip GmbH may adjust the amount of recurring remuneration components as required if this is appropriate taking into account the development of costs for wages and salaries as well as for the purchase of IT services and other factors relevant to pricing. edudip GmbH will inform the Customer of such price adjustments in writing with reasonable notice, but at least six (6) weeks before the planned effective date of the price adjustment. Price adjustments will only be applied to the Customer with effect for the next invoicing period, irrespective of the date of entry into force notified. If the price increase is more than 5% compared to the last invoiced price, the Customer has a special right of termination against the price increase, which can be exercised within two (2) weeks of receipt of the notification of the planned price increase by means of a written declaration to edudip GmbH with effect from the start of the next invoicing period.
6.3 Billing Information. The Customer undertakes to provide edudip GmbH with complete and accurate invoicing and contact information and, if applicable, to notify edudip GmbH without undue delay of any changes to such information, including (a) its company name; (b) email; (c) its VAT and company registration number (irrespective of whether VAT is not applicable due to the reverse charge procedure); and (d) any order or other numbers or references that edudip GmbH should indicate in its invoices. If the Customer fails to notify edudip GmbH in accordance with this clause 6.3, the Customer will not be entitled to argue that an invoice issued by edudip GmbH using the most recently notified information was not properly issued.
6.4 Late payment. edudip GmbH reserves the right to terminate the Agreement or to block the Customer ‘s access to the edudip Application if an overdue payment has not been received by edudip GmbH within thirty (30) days of the Customer being notified of the payment default. The amount in arrears is subject to interest at the statutory rate during the period of default.
6.5 Set-off. The Customer may only offset against invoices of edudip GmbH if edudip GmbH has acknowledged in writing that it owes the amount or if it has been established in an uncontested court decision that edudip GmbH owes this amount.
7. IT security
7.1 IT security precautions. The Parties shall protect their IT systems used for the cooperation under the Agreement against IT security risks and threats by taking reasonable and appropriate precautions, each of which shall be state of the art, in particular with anti-virus systems and firewalls. If a Party becomes aware of a security problem that could have a negative impact on any part of the edudip Application, the technical interfaces and/or the other IT systems or databases of the other Party, it shall immediately inform such other Party in writing. In such a case, edudip GmbH may block the Customer ‘s access to the edudip Application until the security problem has been demonstrably remedied.
7.2 Suspension in the event of a breach. edudip GmbH may, at its own discretion and after notifying the Customer accordingly, also suspend the Customer ‘s access to the edudip Application if edudip GmbH has reasonable grounds to believe that the Customer has failed to comply with the obligations set out in clause 7.1 of these General Terms and Conditions and that, as a result, the technical interfaces, the edudip Application and/or the other IT systems or databases of edudip GmbH are subject to a security risk that exposes edudip GmbH or third parties to a reasonable risk of substantial or prolonged damage. In the exceptional event that edudip GmbH suspends the Customer ‘s access in accordance with the preceding sentence, edudip GmbH will use commercially reasonable efforts to limit the suspension and its effects to the extent possible, cooperate with the Customer to resolve the issues giving rise to such suspension and, to the extent reasonable under the circumstances, promptly restore access to the edudip Application upon resolution of the matter.
7.3 Indemnity. The Customer will indemnify and defend edudip GmbH and its affiliates, officers, directors, employees, attorneys and agents against all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of any breach by the Customer of its obligations under clause 7.1 of these Terms and Conditions. The claims granted to edudip GmbH under this clause 7.3 will only exist if the Customer has acted with at least negligence. In the event of an indemnification obligation under this clause 7.3, edudip GmbH will: (a) promptly notify the Customer in writing of any such claim; (b) leave the Customer in sole control of the defense and settlement of the claim; and (c) provide the Customer, at the Customer ‘s expense, with all available information and reasonable assistance.
8. Term and termination
8.1 Term; Ordinary Termination. Each Agreement shall commence on the Effective Date and shall have an initial Term of one (1) month, twelve (12) months or twenty-four (24) months, depending on the Tariff selected. The Agreement will automatically renew for the period of the initial Term unless either Party terminates the Agreement by written notice to the other Party. If the Term of the Agreement is one month, seven (7) days’ notice may be given before the end of the Term. If the Term is twelve (12) or twenty-four (24) months, notice must be given in writing at least two (2) months prior to the end of the then current Term.
8.2 Extraordinary termination. Extraordinary termination rights of the Parties remain unaffected. Apart from the reasons for termination of the Agreement by edudip GmbH expressly stated in these General Terms and Conditions or elsewhere in the Agreement, edudip GmbH is entitled to terminate the Agreement if the Customer fails to comply with its obligations under the Agreement and (a) fails to remedy the breach within a reasonable period of at least 14 days despite a warning from edudip GmbH; or (b) the breach is so serious that edudip GmbH can no longer reasonably be expected to cooperate with the Customer; or (c) there is a serious breach of Agreement which cannot be remedied by the Customer or cannot be remedied within a reasonable period of time. Serious breaches of Agreement on the part of the Customer are, in particular, circumstances which entitle edudip GmbH to block the Customer ‘s access to the edudip Application.
8.3 Consequences of termination.
(1) Rights of use and information obligations of the Customer. If the Agreement is terminated, for whatever reason, (a) all rights of the Customer to use the edudip Application will expire; and (b) the Customer is obliged, subject to sentence 2 of this Clause 8.3(1), to cease attempting to access the edudip Application. The right of the Customer and the obligation of edudip GmbH to allow the Customer to access the edudip Application to the extent necessary for the Customer to download a copy of all relevant Content pursuant to Clause 8.3(3) of these General Terms and Conditions remains unaffected.
(2) Payment obligations of the Customer. Termination of the Agreement shall in no case release the Customer from the obligation to pay the remuneration payable to edudip GmbH at the time the termination becomes effective.
(3) Deletion or retention of Content. Without prejudice to the foregoing paragraphs of this clause 8, the Customer acknowledges and agrees that (a) edudip GmbH shall not be entitled or obliged to retain any Content for more than thirty (30) days after the effective date of termination of the Agreement; (b) it shall be the Customer ‘s sole responsibility to download and securely store a copy of all relevant Content within such thirty (30) days after the effective date of termination of the Agreement; (c) edudip GmbH will delete or destroy the Content in its possession or under its control at the end of such thirty (30) days after the effective date of termination of the Agreement, unless edudip GmbH is required by law to retain some of the Content. In such a case, of which edudip GmbH will inform the Customer in writing before or at the time of termination, edudip GmbH will destroy such Content as soon as the legal obligation to retain it expires. The provisions of the Data Processing Agreement regarding the return or destruction of the Customer ‘s personal data remain unaffected and take precedence over any provisions of this Clause 8.3(3).
(4) Continued use of aggregated data. Termination will not affect edudip GmbH’s right to continue to use the aggregated data obtained on the basis of usage Data for an unlimited period of time. For the avoidance of doubt, edudip GmbH is no longer entitled to aggregate customer data for the purposes set out in the Agreement when a termination of the Agreement takes effect.
9. Warranty
9.1 Warranty commitments of edudip GmbH.
(1) Warranty. When using the edudip Application in accordance with the Documentation, edudip GmbH warrants the functionality of the edudip Application and all Services in accordance with the provisions of the Agreement. edudip GmbH further warrants that neither the edudip Application nor the Services, when used in accordance with the Agreement, will infringe or misappropriate the rights of third parties, including Intellectual Property Rights.
(2) Remedy of defects. Notwithstanding clause 9.3 of these General Terms and Conditions, in the event of defects or malfunctions attributable to edudip GmbH, edudip GmbH may first remedy the defect by releasing updates that do not contain the defect, or by patching the edudip Application to remedy the defect, or by correcting the respective Services so that they are no longer defective.
(3) Rights of the Customer. If subsequent performance fails, the Customer may, at its discretion, reduce the remuneration payable to edudip GmbH or, if the defect not only insignificantly impairs the contractual use of the edudip Application, terminate the Agreement for good cause. However, subsequent performance is only deemed to have failed if the Customer has given edudip GmbH sufficient opportunity to remedy the defect within a reasonable period of time without the due success having occurred. The provision of a temporary solution to circumvent the defect (“workaround”) shall be taken into account when calculating the period.
9.2 Personnel of edudip GmbH. edudip GmbH is responsible for the performance of its personnel (including employees and subcontractors) and their compliance with the obligations set out in the Agreement.
9.3 Third party claims.
(1) Information and cooperation obligations of the Customer. If the Customer becomes aware of a third party’s claim that the provision and/or use of the edudip Application or a service infringes its or a third party’s Intellectual Property Rights, the Customer will inform edudip GmbH thereof without undue delay. To the extent possible, edudip GmbH will, at its own expense, assume the defense of the claims asserted due to the alleged infringement of Intellectual Property Rights and conduct any negotiations to settle the legal dispute. The Customer will support edudip GmbH in this respect to the extent reasonable and promote the defense and settlement negotiations.
(2) Elimination of defects of title. If edudip GmbH obtains knowledge of a court or other claim, suit or proceeding or of the intention of a third party on the basis of a notification by the Customer pursuant to section 9.3(1) or otherwise becomes aware of any judicial or extrajudicial claim, action, demand, suit or proceeding or of any intention of a third party to bring or assert any of the foregoing claims in respect of any alleged infringement or misappropriation of such third party’s Intellectual Property Rights by the edudip Application or the Services, edudip GmbH may, at its sole discretion, (a) modify the edudip Application or the Services in such a way that any infringement or misappropriation of any third party’s Intellectual Property Rights can no longer be asserted, and edudip GmbH shall provide reasonable assistance to the Customer in connection with such modifications to ensure reasonable and continued use of the edudip Application or the Services; (b) acquire a license for the Customer’s continued use of the edudip Application or Services in accordance with the Agreement; or (c) terminate the Agreement to the extent it is affected by the Intellectual Property Rights of third parties upon thirty (30) days’ prior written notice to the Customer and refund the consideration paid in advance for the affected portion of the edudip Application or Services for the remaining Term. The further liability of edudip GmbH for defects of title remains unaffected subject to the provision in clause 10 of the Agreement.
9.4 Limitations of the warranty.
(1) Communication facilities. The Customer acknowledges that edudip GmbH has no control over the transmission of data via communication facilities, including the Internet, and that the use of the edudip Application may be subject to restrictions, delays and other problems associated with the use of such communication facilities. The Customer further acknowledges that edudip GmbH’s actual ability to influence the provision of the SaaS Infrastructure is limited.
(2) Improper use. edudip GmbH is not liable if the use of the edudip Application is impaired by improper installation, operation or maintenance by the Customer or a third party assigned by the Customer. In particular, any warranty for impairments resulting from the edudip Application being used under conditions that do not correspond to the hardware and software environment specified in the Documentation is excluded. edudip GmbH is not liable for the destruction, damage, loss or failure of storage of Content for which edudip GmbH is not responsible or which is due to a malfunction of the data transmission or operation of the edudip Application by the Customer.
10. Liability
10.1 General. With the exception of liability (a) under the German Product Liability Act (Produkthaftungsgesetz ProdHaftG); (b) for injury to life, limb or health; (c) in the event of intent or gross negligence; and/or (d) in the event of breach of a warranty of quality, the liability of edudip GmbH is limited or excluded as follows.
10.2 Limitation of liability. In the event of negligence, edudip GmbH is liable, in the absence of an explicit agreement between the Parties on a maximum liability limit, whether under the Agreement or otherwise, only for the breach of material contractual obligations, i.e. obligations the fulfilment of which is a prerequisite for the proper performance of the Agreement, the breach of which thus jeopardizes the achievement of the purpose and compliance with which the Customer may regularly rely on. In these cases, the liability of edudip GmbH is limited to the foreseeable, contract-typical damage according to the nature of the action in question.
10.3 Offsetting of contractual penalties. Insofar as edudip GmbH is obliged to pay the Customer a contractual penalty in accordance with the Service Level Agreement (SLA), the contractual penalty is to be offset against a claim for damages by the Customer due to the same breach of duty by edudip GmbH.
10.4 No liability without fault. Liability without fault for defects that already existed on the Effective Date (Para. 536a (1) Alt. 1 German Civil Code – Bürgerliches Gesetzbuch BGB) is excluded unless the defect relates to an expressly warranted characteristic or quality or edudip GmbH has fraudulently concealed the defect.
10.5 Liability during the test phase; liability for the Freemium Area or Beta versions. The liability of edudip GmbH for defects during the free trial period (clause 2.1), defects in the Freemium Area or Beta versions (clause 3.1(2)) and for claims arising from the use of the Freemium Area or Beta versions is excluded, unless a case of clause 10.1 of these General Terms and Conditions applies or edudip GmbH has fraudulently concealed a defect.
10.6 Force majeure. The Parties shall not be liable to each other for any delay or impossibility in the performance of their obligations if such delay or impossibility is due to an event of force majeure. In the event of such an event of force majeure, the performance period shall be extended by the duration of the delay or impossibility of performance. Either Party may terminate the Agreement if the Force Majeure Event continues for more than eight (8) weeks.
10.7 Exclusion of liability. Any further liability of edudip GmbH, on whatever legal grounds, is excluded. All liability claims become statute-barred within twelve (12) months of knowledge or grossly negligent ignorance of the circumstances giving rise to liability.
10.8 Liability of the personnel of edudip GmbH. Insofar as the liability of edudip GmbH is excluded or limited, this also applies to the personal liability of the affiliated companies, legal representatives, employees, officers, representatives and vicarious agents (Erfüllungsgehilfen) of edudip GmbH.
11. Intellectual Property Rights
11.1 Intellectual Property Rights of edudip GmbH. No common Intellectual Property Rights are created under or in connection with the Agreement. edudip GmbH is the owner of all rights, including all associated Intellectual Property Rights, in the edudip Technology, the edudip Application and the aggregated data. This also includes all system performance data and machine learning processes, including machine learning algorithms, as well as the results and output of such machine learning. In addition, Customer acknowledges that edudip GmbH may use, copy, extract, modify, distribute, analyze, compile and display the aggregated data for routine business purposes, including but not limited to developing, enhancing, improving and supporting edudip GmbH’s products and Services, or as may be required by law, and that edudip GmbH may share versions of the aggregated data with third parties inside and outside the edudip Application.
11.2 Product names and logos. The name and logo of edudip GmbH and the product names associated with the edudip Application are or may be trademarks of edudip GmbH, and the Customer is not granted any right or license to use such trademarks under the Agreement, except as expressly provided otherwise under the Agreement.
11.3 Customer Ideas. Unless otherwise expressly stated at the time Customer Ideas are provided to edudip GmbH, by providing Customer Ideas to edudip GmbH, Customer agrees and/or undertakes that (a) Customer Ideas do not contain Confidential or proprietary information of third parties; (b) edudip GmbH is under no express or implied obligation of confidentiality with respect to Customer Ideas; and (c) edudip GmbH may already be considering or developing something similar to Customer Ideas. With respect to the Customer Ideas, the Customer grants edudip GmbH an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, create derivative works of, publish, distribute and sublicense the Customer Ideas, and the Customer irrevocably waives vis-à-vis edudip GmbH and all employees of the edudip Application or any other products or Services of edudip GmbH containing such Customer Ideas, any and all claims and assertions with respect to rights that are or may be contained in such Customer Ideas and shall cause such rights to be waived with respect to the providers of such ideas. The Customer has no claim to the implementation of Customer Ideas provided by it to edudip GmbH within the framework of the edudip Application; edudip GmbH remains free as to whether and within what time periods it implements Customer Ideas.
12. Confidential Information
12.1 Standard of care in handling Confidential Information. The Receiving Party shall exercise at least the same degree of care in protecting the Confidential Information of the Disclosing Party as it exercises in protecting its own Confidential Information, but in no event less than a reasonable standard of care.
12.2 Restrictions on use. The Receiving Party agrees: (a) not to use the Disclosing Party’s Confidential Information except as permitted under the Agreement; and (b) to limit access to the Disclosing Party’s Confidential Information to its employees, agents and contractors who need such access to perform their duties under the Agreement and who either owe a duty of confidentiality to the Receiving Party or are bound by professional secrecy obligations, the protection of each of which is no less stringent than that set forth in the Agreement. Nothing in this Clause 12 shall require either Party to take any action that would conflict with any applicable law relating to the protection of persons providing information.
12.3 Aggregated Data. Notwithstanding anything to the contrary in the Agreement, edudip GmbH is entitled to collect and use Usage Data to develop, improve, support and operate its products and Services. edudip GmbH is not entitled to disclose Usage Data containing Confidential information of the Customer to third parties, except (a) in accordance with this Clause 12; or (b) to the extent that the Usage Data is aggregated and anonymized so that the Customer and its employees cannot be identified.
12.4 Disclosure for legal reasons. The receiving Party may disclose the disclosing Party’s Confidential Information to the extent compelled by law, provided that the receiving party makes reasonable efforts to notify the disclosing Party in advance of the compelled disclosure and provides reasonable assistance, at its expense, to enable the disclosing Party to challenge or limit the disclosure.
12.5 Continuation. The obligations under these Clauses 12.1 to 12.5 of the Agreement shall survive the termination of the Agreement irrespective of the reasons for termination.
12.6 Precedence. For the avoidance of doubt, the preceding paragraphs of this Clause 12 shall not apply if the Parties have entered into a Mutual Confidentiality Agreement prior to the Effective Date or enter into such Mutual Confidentiality Agreement after the Effective Date.
12.7 Publications. Neither Party will publish any information about the cooperation under the Agreement or use the other Party’s company name and/or logo in its business communications, unless (a) the other Party has previously agreed to this in writing; or (b) this is expressly permitted in accordance with these General Terms and Conditions. edudip GmbH may use the Customer ‘s company name and the logos provided in accordance with clause 2.1(1) (a) in the context of advertising for the edudip Application; and (b) for reference purposes vis-à-vis other Customers, financing partners and other third parties, unless the Customer expressly revokes this permission.
13. Reporting illegal Content
13.1 Electronic reporting. edudip GmbH shall enable a procedure for the purely electronic reporting of information identified as unlawful and retrievable in the edudip Application. This procedure is also open to the Customer. Reports are to be sent by e-mail to meldung@edudip.com. Each notification from the Customer must contain (a) a duly substantiated explanation of why the Customer considers the information in question to be unlawful; (b) a clear indication of the exact electronic location of this information or, where necessary, other information relevant to the nature of the Content and the specific nature of the edudip Application in order to identify the unlawful Content; (c) include the name and email address of the reporting person or entity, unless the information is deemed to relate to an offence referred to in Articles 3 to 7 of Directive 2011/93/EU; and (d) include a statement that the reporting person or entity has a good faith belief that the information and citations contained in the report are accurate and complete.
13.2 Acknowledgement of receipt. Upon receipt of a report within the meaning of section 13.1, edudip GmbH will immediately send the reporting person an acknowledgement of receipt regarding his report to the specified electronic contact address.
13.3 Processing and further Information. edudip GmbH will process all reports in accordance with Clause 13.1 and will decide on the reported information in a timely, careful, arbitrary and objective manner. If edudip GmbH uses automated means for this processing or decision-making, it will provide the relevant information in connection with the provision of the reporting channel pursuant to Section 13.1. edudip GmbH will notify the relevant person without delay of its decision with regard to the reported information, indicating the possible legal remedies against this decision.
13.4 Suspicion of criminal offences. In the event of a suspicion of criminal offences, edudip GmbH is obliged in accordance with Article 18 of Regulation (EU) 2022/2065 (Digital Services Act) to inform the competent law enforcement or judicial authorities thereof.
14. Processing of personal data
14.1 Terminology. For the purposes of this Clause 14, the terms “Controller”, “Processor” and “Processing” shall have the meaning given to them in the applicable Data Protection Laws.
14.2 Data processing by the Parties. The Parties acknowledge that they may be required to process personal data of the other Party, its agents, employees or representatives for the purpose of entering into and performing the Agreement. In such a case, the Parties shall always comply with the obligations imposed on them under applicable Data Protection Laws. In particular, the Customer shall provide each Webinar Participant with comprehensive data protection notices prepared in accordance with applicable Data Protection Laws. Clause 3.3 remains unaffected by this.
14.3 Data processing on behalf of the Customer. To the extent that (a) the Customer grants one or more employees access to the edudip Application; and/or (b) to the extent that the Customer or the employee(s) post Content via the edudip Application that consists of or contains personal data; and/or (c) to the extent that the Customer or the employee(s) contact Webinar Participants or exchange information via the edudip Application, edudip GmbH will process personal data as a processor on behalf of the Customer, who will be the controller. The processing of personal data is carried out in accordance with the obligations set out in the Data Processing Agreement.
15. Settlement of disputes
15.1 Escalation procedure. In the event of any dispute arising out of or in connection with the Agreement, the Parties agree to first consult and negotiate with each other in order to attempt to reach a satisfactory amicable solution in recognition of their mutual interests. Notwithstanding the right of either Party to seek interim relief, the Parties shall seek an amicable settlement for at least a period of sixty (60) days after the dispute arises, and the Parties shall not bring any dispute before the competent court until the expiry of that period.
15.2 Jurisdiction. Any disputes arising out of or in connection with the Agreement which cannot be settled amicably shall be subject to the exclusive jurisdiction of the courts of Cologne, Germany (Landgericht Köln).
16. Applicable law
16.1 Applicable law. The Agreement shall be governed by the laws of the Federal Republic of Germany without regard to its choice of law provisions or the conflict of laws provisions of any other jurisdiction and excluding the United Nations Convention on Contracts for the International Sale of Goods.
16.2 References to statutory provisions. References to the applicability of statutory provisions in the Agreement shall only have a clarifying significance. Even without such clarification, the statutory provisions shall apply unless they are amended or expressly excluded in the Agreement.
17. Amendments to the Agreement
17.1 Amendments by agreement of the Parties. Notwithstanding clauses 17.2 and 17.3 of these General Terms and Conditions, amendments or additions to the Agreement shall otherwise only be effective if agreed in writing between the Parties.
17.2 Amendments made by edudip GmbH. edudip GmbH reserves the right to amend any part of the Agreement after the Effective Date. edudip GmbH will notify the Customer in writing of any such proposed amendment. Unless the proposed amendment is (a) necessary due to legal or regulatory obligations that require a shorter implementation period; or (b) necessary in exceptional circumstances to address an unforeseen and imminent threat to protect the edudip Application, Customers or Webinar Participants from fraud, malware, spam, privacy violations or other cybersecurity risks, edudip GmbH will notify the Customer at least 15 days prior to the effective date of the proposed amendment to the Agreement. If, as a result of the proposed amendment, technical or business adjustments are necessary on the part of the Customer that require a longer preparation period, edudip GmbH will extend the period to a reasonable extent. Without prejudice to clause 17.3 below, the reservation of right to make changes in favor of edudip GmbH does not include any changes that would unreasonably disadvantage the Customer by significantly disturbing the contractual balance between the Parties. Retroactive changes are excluded unless they are made in fulfilment of a statutory or officially ordered obligation of edudip GmbH or the retroactive changes are of benefit to the Customer.
17.3 Special right of termination of the Customer. In the event of an amendment to the Agreement in accordance with Clause 17.2, the Customer has a special right of termination. The Customer may exercise this right until the proposed amendment comes into force by written declaration to edudip GmbH and terminate the Agreement with effect from the date on which the proposed amendment comes into force. The Customer may exercise its special right of termination in accordance with this Clause 17.3 at any time by making a corresponding written declaration to edudip GmbH.
18. Other provisions
18.1 Mutual representations and warranties. Each Party represents and warrants that: (a) it is an officially registered company incorporated in accordance with all provisions of national law at that Party’s place of business and has a recognized and active legal personality and is authorized to enter into and perform the Agreement; (b) the execution of the Agreement has been duly authorized by all necessary corporate action by the Party; (c) the Agreement constitutes a valid and binding obligation on it, enforceable in accordance with its terms; (d) neither it nor any of its employees or agents has offered or will offer any illegal bribe, kickback, payment, gift or thing of value in connection with the Agreement; and (e) that it is not on any applicable sanctions list.
18.2 Entire Agreement. The Agreement constitutes the entire agreement between the Customer and edudip GmbH and supersedes all prior or contemporaneous negotiations, discussions or agreements between the Parties relating to the subject matter hereof, whether written or oral. No text or information contained on any booking, form or document other than the Agreement duly signed or entered into by electronic commerce between the Parties supplements or modifies the terms of the Agreement.
18.3 Severability. If any provision of the Agreement is or becomes invalid, void or unenforceable, all other provisions of the Agreement shall remain in full force and effect.
18.4 Relationship of the Parties to each other. No joint venture, partnership, employment or agency relationship exists between the Customer and edudip GmbH as a result of the cooperation under the Agreement.
18.5 Assignment; change of control.
(1) Assignment. The Agreement and the rights and obligations arising therefrom may not be assigned by either Party without the prior written consent of the other Party, which consent may not be unreasonably withheld, whether by operation of law or otherwise. The Customer hereby consents to any assignment of the Agreement and the rights and obligations arising therefrom to any Affiliate of edudip GmbH, whether or not such Affiliate exists on the Effective Date.
(2) Change of control. Notwithstanding the foregoing, either Party may assign the Agreement in its entirety without the consent of the other Party in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. In the event of an assignment within the meaning of the preceding sentence, the assigning party shall give written notice of the assignment to the other Party.
(3) Void assignments. Any assignment in breach of this Clause 18(5) shall be deemed void ab initio.
(4) Exceptions. Para. 354a of the German Commercial Code (Handelsgesetzbuch HGB) shall remain unaffected.
18.6 Waiver. Failure by either Party to enforce any right or provision of the Agreement shall not be deemed a waiver of such right or provision unless expressly waived by the Party concerned.
18.7 Headings; Explanatory notices. The headings in these General Terms and Conditions and any explanatory notes preceding or accompanying the individual provisions are for convenience only and shall in no way be construed as limiting, supplementing, expanding or otherwise altering the meaning of any section of these General Terms and Conditions.
18.8 Language. The Agreement shall be drawn up in the German language. Any translations of these General Terms and Conditions or other parts of the Agreement are for convenience only. Only the German language version shall be authoritative for the interpretation of the Agreement.
19. Glossary
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party; “control” for purposes of this definition means direct or indirect ownership or control of more than fifty percent (50%) of the voting power of a Party or the right to direct the affairs of the Party;
“Agreement” means the agreement on the provision of the edudip Application on the basis of a contract and including these General Terms and Conditions as well as all other terms or provisions which, irrespective of their designation or form, govern the contractual relationship between edudip GmbH and the Customers;
“Availability” means, depending on the context, the availability of the edudip Application in the form of the SaaS Infrastructure or the API interfaces, as described in detail in the Service Level Agreement;
“Confidential Information” means any information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form that is designated as confidential or that should reasonably be considered confidential given its nature and the circumstances of disclosure; Confidential Information includes, but is not limited to, edudip Technology, Documentation, edudip GmbH pricing and the terms of the Agreement. Notwithstanding the foregoing, the Confidential Information does not include information that: (i) is or becomes generally known to the public without the Receiving Party having breached any obligation to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was received from a third party without an obligation of confidentiality; or (iv) was independently developed by the Receiving Party without using the Confidential Information of the Disclosing Party;
“Content” means all Content submitted to the Customer via the edudip Application or the profile on the edudip Website or entered, edited, created, submitted or otherwise made available to Webinar Participants or edudip GmbH by the Customers in the edudip Application;
“Contractual Territory” means a specific territory, place, location or branch of the Customer to which the Customer’s rights to use the edudip Application may be limited in accordance with the Documentation; for the avoidance of doubt, even if no Contractual Territory is expressly mentioned in the Documentation, the Contractual Territory shall never include a country or region that is on an embargo list of the Federal Republic of Germany or the European Union, and the Customer may never use the edudip Application there;
“Customer” means the providers of Webinars with whom edudip GmbH has concluded an Agreement for the provision of the edudip Application;
“Customer Ideas” means all suggestions, ideas, improvement requests, feedback, recommendations or other information provided by the Customer in relation to the edudip Application, whether provided to edudip GmbH in written or oral form or by any other means;
“Data Processing Agreement” means the Data Processing Agreement entered into between the Parties as at the Effective Date; the Data Processing Agreement shall be entered into pursuant to Article 28 of the GDPR where the Parties’ relationship falls within the scope of the GDPR and shall be construed in relation to any other country or region in accordance with any other provisions of the applicable Data Protection Laws requiring the Parties to enter into a similar agreement;
“Data Protection Laws” means, in relation to the EU, the General Data Protection Regulation and the laws of the Member States implementing the General Data Protection Regulation and, in relation to any other country, any applicable personal data and/or privacy laws;
“Documentation” means the product description of the edudip Application as provided or made available to the Customer in the then current version and describing the use and operation of the edudip Application;
“edudip Application” means the edudip application offered as Software as a Service by edudip GmbH for the organisation and booking of interactive Webinars;
“edudip Technology” means all technology of edudip GmbH (including software, algorithms, data aggregation procedures, data analysis, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information) provided by edudip GmbH to the Customer in the provision of the edudip Application;
“Effective Date” means the date on which the Parties have duly signed or electronically entered into the Agreement;
“Emergency Maintenance Work” means maintenance work that may cause downtime or otherwise delay or interrupt the Customer’s use of the edudip Application and the need for which is not known to edudip GmbH in advance, as described in detail in the Service Level Agreement;
“Force Majeure Event” means a fire, natural disaster, pandemic or epidemic, act of state, riot, civil commotion or other cause beyond the reasonable control of edudip GmbH;
“Intellectual Property Rights” means inventions, patent applications, patents, design rights, copyrights, trademarks, trade names, domain name rights, know-how and trade secret rights and all other intellectual property rights, derivatives thereof and all renewals thereof and other forms of protection of a similar nature anywhere in the world;
“Mutual Confidentiality Agreement” means a separate agreement regarding the obligations of the Parties with respect to each other’s Confidential Information;
“Packages” means the supporting Services for the preparation and implementation of Webinars listed on the website of edudip GmbH and in the Documentation;
“SaaS Infrastructure” means the IT infrastructure used by edudip GmbH to provide the edudip Application to the Customers; in the context of the Service Level Agreement, a distinction is made between Primary and Secondary Service Components of the SaaS infrastructure;
“Scheduled Maintenance” means maintenance work by which edudip makes changes, updates or repairs to the edudip Application and which is carried out on a date determined in advance, as described in detail in the Service Level Agreement;
“Services” means the services provided by edudip GmbH to the Customer in accordance with the Agreement;
“Service Level Agreement (SLA)” means the terms relating to Availability including Scheduled Maintenance and Emergency Maintenance Work; the Service Level Agreement (SLA) forms part of the Agreement;
“Tariff” means the Tariffs of the edudip Application listed on the website and in the Documentation, which differ in terms of the number of participants, other individual Services and the price, and which define the scope of the possibility of use for the Customer;
“Term” means the term of the Agreement;
“Usage Data” means data concerning the use of the edudip Application by the Customer as well as data concerning the use of the edudip Application by the Webinar Participants
“Webinar” means the interactive video conferences of the Customers conducted in the edudip Application;
“Webinar Participants” means the participants of the Webinars conducted by the Customer.