General Terms and Conditions for edubreak® and related Services

(Date: February 2022)

 

  1. Scope of Application
    1. These General Terms and Conditions (hereinafter referred to as "GTC") apply between us, Ghostthinker GmbH, Hunoldsberg 5, D-86150 Augsburg, Germany ("We/Us"), and you as customer ("You") for services related to the use of our software solution "edubreak®". The terms and conditions apply in the version valid at the time of the respective contract conclusion.
    2. Our services are directed exclusively Entrepreneurs in the sense of § 14 Abs. 1 BGB ("German Civil Code”) (this includes sports organizations and educational institutions such as universities). We do not conclude any contracts with consumers (§ 13 BGB).
    3. The content of the contract is always based on the Offer and/or booking documents prepared / published by Us and accepted by You (hereinafter jointly referred to as "Offer"). In the event of contradictions between the Offer and the GTC, the Offer shall take precedence.
    4. We may change these GTC at any time with a notice period of six (6) weeks by notifying You in writing (e.g. by e-mail). You may object to such a change within four (4) weeks of receipt of the notification of change in text form, otherwise the change shall be deemed to be approved by You. We will refer to the effect of approval in our notification of change. Excluded from the right to amend these GTC in accordance with the previous paragraph shall be provisions which affect the main contractual obligations of the parties and which thus significantly change the relationship between main and counter-performance obligations, as well as other fundamental changes to contractual obligations which are equivalent to the conclusion of a new contract. An express contractual agreement shall be required for such changes.
    5. We shall be bound by a binding Offer for one month from the date of submission of the Offer, unless another period is specified in the Offer.
  2. Our Services
    1. An essential and usual part of the services We provide to You within the scope of a business relationship is the provision of edubreak® for use by Your users in the form of a temporary software license including support for You and Your users ("SaaS Services"), consisting of the following partial services
      1. Provision and operation of edubreak® for use by You and Your users in accordance with the Offer and these GTC in a datacenter in Germany engaged by Us;
      2. Technical support for You and Your users for the setup and use of edubreak® via email according to clause 2.5.
    2. After appropriate agreement, We will provide You with further services in addition to the SaaS Services, especially performance related services such as the development of customer specific extensions of edubreak® (together "Works") or other consulting and support services ("Services"). For Works the "Supplementary Provisions for Works" of these GTC (clauses 11 ff.) apply in addition and with priority over the other clauses of these GTC. For Services, the "Supplementary Provisions for Services” of these GTC (Sections 18 et seq.) shall apply in addition to and with priority over the other sections of these GTC.
    3. edubreak® is provided in form of different modules. The functionality of edubreak® in detail as well as the scope of the provided modules shall be described in the Offer. During the contract period We are entitled to change the functionality of edubreak®. We will inform You about technical changes in time, but at least two (2) weeks in advance.
    4. The operation of edubreak® is done 24x7 with an availability of 98.0% per month on workdays (Monday-Friday). We occasionally use maintenance windows for maintenance work of various kinds. This maintenance work shall be - except in emergencies - carried out on workdays between 8 pm and 6 am, on weekends and holidays in Germany. Maintenance times that meet these requirements shall be considered as times when edubreak® is available.
    5. Within the scope of SaaS Services We support You in using edubreak® on request. We provide these support services via integrated support requests or e-mail during the following service times: Monday to Friday (except public holidays in Hamburg or Bavaria) from 9 am to 5 pm. Further support services shall be provided according to a separate agreement; You have no right to this.
    6. For the provision of the services under clause 2.5 as well as for Works and Services, We shall use carefully selected own employees or third parties as subcontractors with the respective agreed and required qualifications. We shall be entitled at any time to replace our own employees or third parties employed to perform the services with employees with comparable qualifications and experience. If these employees have been communicated to You by name, We will inform You about the replacement.
    7. We are a pure information broker. In particular We are not responsible for the content provided and exchanged via edubreak® and are not obliged to check this content for its legality.
    8. To enable Us to check Your compliance with the agreed scope of use, We are entitled to transfer anonymous and therefore non-personal data (course assignments, number of active user accounts) about Your use of edubreak® into our systems at regular intervals.
  3. Obligations to Cooperate
    1. You acknowledge Your obligation to cooperate as a prerequisite for the performance of services by Us and thus as Your contractual obligation.
    2. The provision of edubreak® is linked to certain conditions regarding the technical infrastructure used by You. You will inform yourself about the essential functional features of edubreak® and the technical requirements (e.g. regarding browser, client hardware and network connection) and You will observe them. You bear the risk whether edubreak® meets Your wishes and circumstances.
    3. Technical requirements and specifications according to clause 4.2 may change from time to time, especially in connection with updates of edubreak®. We will inform You in time before any change of requirements and specifications. You will implement current requirements and specifications immediately.
    4. You will name in writing a suitable contact person for Us (e.g. education manager / consultant of Your organization) and an address and e-mail address where the availability of the contact person is ensured. The contact person must be in a position to make the necessary decisions for You or to bring them about without delay. Your contact person will ensure good cooperation with our contact person.
    5. You shall, in an appropriate manner, request the users You have authorized to comply for their part with the provisions applicable to users of the software. In this context, You may choose, as part of the configuration of edubreak®, whether to present these provisions to Your users outside of edubreak® for their consent or whether to require each user to electronically consent to an end user agreement integrated into the software. You shall have the right to design this end user agreement yourself or to use a template designed by Us, for which You shall take legal responsibility.
    6. If You and/or Your users violate any rights of use, You shall cooperate to the best of Your ability in clarifying any acts of infringement and their scope, and in particular You shall inform Us of the relevant act of infringement.
    7. If You fail to fulfill a duty or obligation, or do so improperly or late, and if We are therefore unable to provide Your services in accordance with the contract, agreed deadlines for performance may, for example, be extended in accordance with the delay plus a reasonable period for resuming work. We shall invoice You for the additional expenditure caused thereby, in particular for extended provision of the personnel or material resources used, at the agreed rates in addition.
  4. Prices and Terms of Payment
    1. The prices stated in the Offer are in Euro, plus the statutory value added tax applicable at the time of performance of the service and without deductions.
    2. Unless otherwise agreed in the Offer, We grant the following discounts on agreed prices for SaaS Services (not for services to produce Works / Services) when concluding contracts with fixed terms of more than one (1) year:
      1. Two (2) year term: 5% discount;
      2. Three (3) years term: 8% discount;
      3. Four (4) years term: 13% discount;
      4. Five (5) years duration: 21% discount.
    3. If We incur additional expenses due to gaps or ambiguities in the documents provided by You, We may invoice such additional expenses at the agreed rates. This shall also apply to additional expenses which are due to contradictory or incorrect information from Your sphere.
    4. We shall invoice SaaS Services upon provision of the edubreak® environment as described in the Offer. Course plans used on a monthly basis (edubreak® accounts that are only valid for one course and are charged per 30 Days) will be invoiced monthly in subsequent installments.
    5. We shall invoice Work Services with a volume of up to four (4) User Story Points („USP“) in accordance with clause 11 of the GTC after the Work Service has been performed. Starting from a volume of five (5) USP, We shall invoice a down payment of 30% of the total amount upon conclusion of the contract. The remaining 70% of the total amount will be invoiced after Work Service performance.
    6. We shall invoice Supply of Services pursuant to clause 17 et seq. of the GTC monthly in subsequent installments after Supply of Services performance.
    7. Invoices shall be due for payment thirty (30) days after receipt of the invoice. In case of doubt, invoices shall be deemed received three (3) working days after the invoice date.
    8. After a delay of thirty (30) calendar days, We have the right to revoke the rights granted under clause 5.1 and/or to prevent access to the use of edubreak® with immediate effect. In case of doubt, neither such a revocation nor a prevention of access is to be interpreted as a withdrawal or termination of the contract. We will restore the access as soon as You have completely settled the outstanding payments.
    9. We shall be entitled to increase the Pricing for the SaaS Services for the first time upon expiry of one (1) year after the commencement of the agreement and not more than once a year with a notice period of three (3) months in proportion to the cost development at our company. We shall be entitled to pass on any cost increases in excess of this for advance services provided by third parties, except to the extent that We have caused such increases. As soon as the pricing increases by more than 5%, You shall be entitled to extraordinarily terminate the agreement with a notice period of six (6) weeks after receipt of the request for increase with effect from the time the increase becomes effective. In the event of a reduction of the corresponding costs, You shall also be entitled to demand a corresponding reduction of the Pricing for the first time upon expiry of one (1) year. The announcement of a price adjustment shall be made by e-mail to Your contact person ( see clause 3.4).
  5. Rights of Use
    1. We grant You and the users named by You, upon payment of the due prices, the simple, nonsublicensable, non-transferable, at any time revocable, right, limited to the duration of the contract in terms of time and content and in accordance with the following regulations, to access edubreak® via telecommunication and to use the functionalities connected with edubreak® according to these conditions. You do not receive any further rights, especially on edubreak® or the edubreak® underlying software application.
    2. You are not allowed to use edubreak® beyond the usage allowed according to this agreement or to let third parties use it or make it available to third parties. Especially You are not allowed to copy, sell or transfer edubreak® or parts of it for a limited time, especially not to rent or lend it.
    3. Clause 5.1 does not apply to distinguishable standard products of third parties, which are part of edubreak® or which are given to You in the context of using edubreak®. Your rights on these standard products are exclusively determined by their license terms.
    4. The right of use always refers only to the latest provided version of edubreak®; with updating, the rights of use of previously provided versions expire for the future.
  6. Rights in case of Defects of Title
    1. We warrant that edubreak® does not violate any rights of third parties when used by You according to the contract. This warranty requires that You inform Us immediately in writing of any rights of third parties asserted against You and leave the legal defense and settlement negotiations to Us. You will support Us free of charge to a reasonable extent, in particular by providing Us with the necessary information. Your statutory obligations to give notice of defects remain unaffected. Rights in this sense are only those, which the third party is entitled to in countries, in which You use edubreak® according to contract.
    2. If You are not able to use a work result according to the contract due to a conflicting right of a third party, We can at our own choice either (a) change the work result in such a way that the right of the third party is no longer infringed, or (b) provide You with the necessary authorization to use the work result. The self-execution by You or by involving third parties is excluded. Section 8 shall apply to Your claims for damages.
    3. Your claims for defects of title shall not exist if the work results have been modified after acceptance by You or third parties, unless You prove that the infringement of rights is not a consequence of the modifications. Your claims shall also not exist in the event of infringements of rights resulting from a combination of the work results of Us with such services or products of third parties who are not subcontractors of Us in this respect.
  7. Liability
    1. We shall be liable without limitation for damages caused by gross negligence or intent by Us, our legal representatives or vicarious agents. We shall also be liable without limitation for damages arising from culpable injury to life, body or health.
    2. We shall only be liable for slight negligence in the event of a breach of material contractual obligations, whose breach endangers the purpose of the contract and on whose fulfillment the customer could rely to a special degree. This liability shall be limited to compensation for damages that were typically foreseeable at the time the contract was concluded. Furthermore
      1. the liability according to § 536a BGB ("German Civil Code") and
      2. in cases where We provide You with edubreak® free of charge for testing purposes, our liability for cases of slight negligence is excluded.
    3. In cases of slight negligence, our liability for loss of profit, savings and image damage is excluded.
    4. The aforementioned limitations of liability shall also apply in favor of our legal representatives and employees and shall also apply in the case of pre-contractual or tortious liability.
    5. Our liability for damages under the Product Liability Act shall remain unaffected.
  8. Data Protection
    1. We shall observe the data protection laws applicable to Us. Please refer to our data protection declaration. Insofar as We process personal data in the course of providing our services, We shall act exclusively on Your behalf and on Yyour directives. For this purpose, We shall enter into a separate written agreement on commissioned processing („DPA” - Auftragsverarbeitungsvertrag „AVV”), based on our DPA template. If You wish to conclude such agreement with Us based on Your own template, You shall bear the expenses incurred by Us for the review and negotiation of such agreement (including our external legal fees).
  9. Term and Termination
    1. Unless otherwise stated in the Offer, the commencement of the contract shall be the date of acceptance of Your Offer by Us or, if We commence performance of the service before that date, the date of commencement of performance.
    2. Unless otherwise specified in the Offer, contracts shall have a minimum term of one (1) year. You and We shall have the right to terminate such contract with thirty (30) days' notice to the end of the contract term. If no notice of termination is given, the contract term shall be renewed for one (1) additional year in each case.
    3. In deviation from clause 9.2, all contracts with a term of one (1) year concluded prior to February 1th 2022 shall terminate at the end of the agreed contract term without the necessity of a notice oftermination.
    4. Contracts with a contract term of more than one (1) year shall end upon expiry of the (fixed) term without the necessity of a notice of termination.
    5. The right of extraordinary termination for good cause shall remain unaffected.
    6. Notices of termination must be given in writing; text form is excluded. Transmission of the termination letter (as a scan) by e-mail is permissible.
    7. Your right to terminate the contract without notice if the contractual use of edubreak® is not granted or withdrawn in time § 543 para. 2 clause 1 of the German Civil Code (”BGB").
  10. Miscellaneous
    1. We are entitled to use You or Your brand/logo as a reference for the purpose of presentation on the company website or in brochures. Any use beyond this, e.g. as a showcase or best practice example, will only take place with Your consent.
    2. The assignment of Your rights or obligations under the contract - especially assignments and pledges - to third parties is excluded without our prior written consent.
    3. Changes and additions to the Offer or these General Terms and Conditions must be made in writing. This shall also apply to any cancellation or waiver of the requirement of the written form. Unless otherwise agreed, all other communications in connection with the execution of this contract may be sent by e-mail (to the e-mail addresses provided by the parties for these purposes). Oral agreements and transmission by telephone are not sufficient.
    4. German law shall apply to the legal relations between Us and to the respective terms and conditions of business. The application of the UN Convention on Contracts for the International Sale of Goods of April, 11th 1988 is excluded.
    5. You have no right of set-off or right of retention, unless Your claim is undisputed or has been legally established by a court of law.
    6. Exclusive place of jurisdiction is Augsburg, Germany, or another legal venue of our choice.

 

Supplementary Provisions for Works
  1. Scope of Works
    1. edubreak® is considered standard software. However, We can, after an appropriate agreement with You, provide services to adapt edubreak® to Your special needs ("edubreak® Adaptations") or other performance-related services for You according to these supplementary terms. You are aware, that in case of edubreak® Adaptations to in any case We are entitled to transfer the results into the standard product.
    2. We provide the Works as agreed in the Offer and other service descriptions that become part of the contract (e.g. user stories including acceptance criteria). As a rule, We work together using methods of agile project development.
    3. Unless otherwise agreed in the Offer, We implement edubreak® Adaptations in the form of “Development Participation” according to the following stages:
      1. "Development Participation Level 1": We pay half of the costs for the edubreak® Adaptations. You decide which part of the other half of the costs You want to pay. For the remaining part We look for other customers/organizations, who also want the respective edubreak® Adaptations and want to take over a share of the development participation. As soon as We have gained a sufficient number of customers/organizations to cover half of the costs, We will set the time frame for the implementation of the edubreak® Adaptations at our own discretion.
      2. "Development Participation Level 2": You bear half of the costs for the edubreak® Adaptations, We bear the other half of the costs. Immediately after the agreement, We determine the time frame for the implementation of the edubreak® Adaptations at our own discretion.
      3. "Development Participation Level 3": You bear the full costs for the edubreak® Adaptations. After an appropriate agreement We will start as soon as possible and reasonable with the implementation of the edubreak® Adaptations (the minimum lead time is two (2) months).
    4. The agreed payment covers only the agreed scope of services at the beginning of the project. Additional services will be charged separately on the basis of the agreed or market prices, unless it is a matter of unremitting and commercially insignificant auxiliary services. Insofar as the originally agreed scope of services contains unintentional gaps or ambiguities, We are entitled to adjust the service description accordingly at our reasonable discretion.
  2. Special Obligations to Cooperate
    1. In particular, You shall immediately make and notify Us of any decisions incumbent on You regarding the performance and content of the Works and shall immediately examine our proposed changes. If this is not possible for You, You will contribute to immediate escalations. You are responsible for the control of Your employees yourself.
    2. You shall provide Us in good time with all technical and other documents and information necessary for the successful provision of the Works.
  3. Acceptance
    1. Works to be produced by Us are subject to acceptance. Results of Services are not subject to acceptance. It may be described in the Offer that defined partial results of Works are accepted separately (genuine partial acceptance). Accepted partial results are the basis for the continuation of the work; they are not covered by any right to withdraw from the contract. In this respect, the subject of a separate acceptance is merely the contractual interaction of these partial services with other results (integration).
    2. We shall make the work results available to You for acceptance after completion. Unless otherwise agreed, You shall declare acceptance of the work results within five (5) working days after provision if the work results performed do not have any defects that prevent acceptance within the meaning of the following provisions.
    3. In the case of work results involving software, We shall agree on the course and scope of the acceptance test at the beginning of the performance of the contract. For the performance of the acceptance test, You shall provide Us with test data and the test results expected by You in good time before the trades are made available in the form specified by Us in the Offer and shall create the agreed technical prerequisites. We may participate in the acceptance test and inspect the test results.
    4. Defects preventing acceptance are defects of Classes 1 and 2 according to the following definition:
      1. Class 1 Defects are deviations which result in the trade or a central part thereof being unusable for You (example: frequent unavoidable system crashes).
      2. Class 2 Defects are deviations which result in considerable restrictions of use for important functions of the work which cannot be circumvented for a reasonable period of time that is reasonable for You (example: incorrect application results with regard to content; errors in reports).
      3. Class 3 Defects are all other deviations.
    5. The parties shall assign the deviations identified during the acceptance test to the Defect Classes by mutual agreement. The result of the acceptance test, including the defects that occurred and their classification, shall be fully documented in an acceptance report within the acceptance period. If You have refused acceptance for good reason, We shall remedy the documented defects that prevent acceptance. The necessary parts of the acceptance test will then be repeated.
    6. Work results shall be deemed to be accepted as soon as You use them productively or have not submitted a list of defects in which at least one defect preventing acceptance is listed within fourteen (14) days after handover of the work results. If You wish to make design changes after the handover of the work results or other project results that do not constitute a notice of defects, We will endeavor to take these wishes into account subsequently.
  4. Rights of Use
    1. In case of development of edubreak® Adaptations We grant You a Right of use according to clause 5 of these GTC.
    2. In case of other work results, We grant You a simple, temporally, spatially and contentwise unlimited, transferable and sublicensable Rights of use on the work results created for You. We grant You this right subject to full payment and acceptance.
    3. Until complete payment and acceptance of the other work results, You have the right to test them as agreed; this does not include the right of operative use. This right to test shall expire if You are in default of payment for more than thirty (30) days. No separate reminder from Us is required in this case.
    4. The granting of rights according to section 14.2 shall not apply to materials or solutions (hereinafter "Ghostthinker IP") that We already possess, including changes and additions made to them. We retain all rights to Ghostthinker IP at all times. Rights of use granted to You for the Ghostthinker IP included in the work results are determined by the contractual purpose on which both parties have agreed upon. The isolated use of Ghostthinker IP is excluded.
    5. In any case, We shall be entitled to use the work results, including the know-how acquired during the performance of the services, in particular the concepts, procedures, methods, and interim results on which the services are based, without restriction, while maintaining our confidentiality obligations.
    6. Insofar as work results are created within the scope of our performance of services which are patentable, utility modellable or designable, We may file a corresponding application for intellectual property rights in our own name and on our own account. To the extent necessary, We shall grant You the right to use the intellectual property right together with the work results. A separate remuneration for this property right license is not payable.
  5. Rights in case of Material Defects of the Work Results
    1. You shall notify Us in writing of any material defects immediately after their discovery and describe them in concrete and sufficiently detailed terms. Your claims for material defects shall become statute-barred within twelve (12) months after acceptance, unless We have fraudulently concealed the material defect; Your statutory limitation period for claims for damages due to material defects shall remain unaffected. In the case of partial performance, the statute of limitations shall depend on the acceptance of the partial performance concerned. Your statutory obligations to give notice of defects remain unaffected.
    2. Material defects in work results involving software shall be assigned by mutual agreement to the classes defined in Section 13.4.
    3. We may determine the type of subsequent performance at our discretion. Subsequent performance shall also be deemed to be a reasonable possibility of circumventing software errors ("workaround"), provided that, taking into account the workaround, an insignificant error remains. We may also demand that You install program parts sent to You with corrections ("bug fixes"). We may determine the time of subsequent performance for material defects which do not prevent acceptance at our reasonable discretion.
    4. You shall support Us free of charge in the analysis and rectification of the defects to the extent necessary. This includes in particular the provision of documents and information to Us free of charge to a reasonable extent.
    5. You may reduce the agreed remuneration or, in the case of material defects that prevent acceptance, withdraw from the contract if subsequent performance has finally failed. The final failure shall be determined by Us taking into account the complexity and the circumstances of the defect rectification, but shall not be assumed in every case after two failed attempts of subsequent performance for a defect. A self-remedy of the defect on Your part or by involving third parties is excluded. Section 7 of these GTC shall apply to Your claims for damages.
    6. We are not responsible for material defects resulting from faulty or incomplete performance descriptions and requirements (e.g. in the form of user stories), Your concepts or defective services or third parties employed by You. We are also not responsible for material defects if work results have been changed after their acceptance, unless You can prove that the defect is not a consequence of the change.
    7. If the defectiveness is due to the use of defective third-party software which We use for the purpose of providing the services and whose defect We are not permitted to remedy ourselves, our obligation to remedy the defect shall consist in asserting claims against the respective licensors.
    8. You shall reimburse Us for any expenses incurred by Us due to unjustified notices of defects at the agreed prices in addition to the agreed remuneration.
  6. Confidentiality
    1. We shall be entitled to keep a copy of the work results and project documents for purely internal purposes, even if they contain information requiring confidentiality. However, this entitlement does not imply any obligation, i.e. in particular We cannot reserve any storage capacity beyond the period of performance of the services. You are solely responsible for the storage of Your project information and results.

Supplementary Provisions for Services

  1. 17 Scope of Services
    1. We provide Services for You as described in the Offer.
  2. Changes in the Scope of Services
    1. If changed requirements or other circumstances for which You are responsible lead to increased expenditure on our part compared with the contractual agreement, We shall notify You of this in writing without delay. We shall invoice these services according to actual expenditure, unless We have made a different agreement.
  3. Proofs, Work Results, Acceptance, Rights of Use
    1. We shall store documents and objects of any kind representing work results until they are handed over to You.
    2. Reports, documentation and similar records provided to You under the Agreement shall remain our property or that of our subcontractors and shall be returned to Us upon request within a reasonable period after termination of the Agreement.