GENERAL TERMS AND CONDITIONS TRAINING PLATFORM PROMLABS GMBH
1. Application of General Terms and Conditions
1.1 In all contractual relationships in which PromLabs GmbH („PromLabs“) provides the online trainings platform training.promlabs.com (“Training Platform”) for clients („Customer“), these Training Platform general terms and conditions („T&C“) apply exclusively together with the conditions of the offer provided by PromLabs to Customer with reference to these T&C on the Training Platform („Contract“ or „Contract Documents“). These T&C as amended from time to time shall apply as a framework agreement for future contracts, without PromLabs having to reference these T&C again for each future contract. In the event of inconsistencies between these T&C and the Contract, the Contract shall take precedence over these T&C. For clarity, the Customer executing the Training Platform Contract may be an entrepreneur according to Section 14 German Civil Code, (BGB) (“Entrepreneurs”) or a consumer according to Section 13 BGB “Consumers”).
1.2 Conflicting provisions and provisions overlapping with the Contract Documents – in particular those in general terms and conditions of Customer – do not become part of the contract, even if those provisions are attached to an order of Customer and even if PromLabs executes such order without objecting explicitly to these general terms and conditions.
2. Scope of Contract, Conclusion of Contract
2.1 These T&C apply also to all pre-contractual relationships between PromLabs and Customer. All items and software delivered by PromLabs to Customer before the start of the Contract, in particular but not limited to proposals, test programs are the intellectual property of PromLabs. These items and software may not be duplicated or made available to third parties. In case there is no subsequent Contract between PromLabs und Customer, the Customer shall return all items and/or software to PromLabs and/or delete them. The Customer may not use the items and/or software once it has become clear that there will be no subsequent Contract.
2.2 Unless an offer of PromLabs does not explicitly state otherwise, the offer is valid for 4 weeks. PromLabs may accept offers by the Customer within 4 weeks in writing.
2.3 The offering of products and services (together: “Services”) on the Training Platform does not represent a binding offer on the part of PromLabs to conclude a Contract with the Customer. In order to purchase Services offered within the Training Platform, the Customer may initiate the order process for an item and then enter the order data into the specified order mask. After selecting the desired payment method, and having accepted these T&Cs, the Customer then submits a binding offer by clicking the “Pay Now” button (such button as amended from time to time, “Pay Button“). Following this order process, the Customer will receive an order confirmation from PromLabs by email. This order confirmation constitutes acceptance of the offer sent by the Customer to PromLabs. Until the Pay Button is pressed, the Customer can change or delete the information in the order form at any time.
3. Provision of Services
3.1 PromLabs provides the contractual software for lease. Customer agrees that PromLabs shall always make available the latest version of the contractual software to Customer.
3.2 PromLabs grants Customer the right to use the contractual software over a https-Browser supported web application (“SaaS-Solution”), PromLabs shall provide the Services according to the technical standards applicable in the moment the Contract has been executed, conditioned upon the Customer fulfilling its contribution obligations. In case access data (e.g. username, password, etc.) are necessary to use the contractual software, PromLabs shall notify these data to Customer in writing immediately upon signature of the Contract, but no later than 5 business days after execution of the Contract.
3.3 The Customer shall inform himself about the substantial functionalities of the contractual software and/or Services before the start of Contract in an exhaustive manner and bears the risk that the software and/or Services satisfy his factual needs and is compatible with Customer’s software including its proprietary application and application or software of third parties (e.g. online-shop-Software, ERP systems, connections to affiliate networks, web browser, etc., together “Customer Software“) and its computer systems.
3.4 PromLabs may modify the contractual software at any time in its entire discretion, in particular to bring it up to the latest technical standards, to enhance its functionality, to make it compliant with applicable laws and/or to take into account changes in the market („Update“). PromLabs may decide in its own discretion whether and how it executes Updates. The Customer will accept any Update. PromLabs does not give any guarantees and assumes no responsibility that the Updates are compatible with the Customer Software and computer systems of Customer.
3.5 PromLabs reserves the right to adjust and update the training content at any time.
3.6 Customer acknowledges that PromLabs will not provide any support for free.
4. Prices, Payment Terms
4.1 The prices in effect at the time an order is placed are applicable. All prices are indicated in United States Dollars (USD) and are understood to include VAT and sales tax.
4.2 In the case of a Contract between PromLabs and the Customer, the fees are immediately due for payment.
4.4 In case payments are not made or not made on time, PromLabs is not obliged to deliver Services and may refuse the provision of Services until full and final payment. This includes the right to suspend access to the Services by Customer until full and final payment.
4.5 In the event of the revocation of a contract declaration by a Consumer pursuant to Section 5 hereof, or in the event of the rescission of the Contract on other grounds, PromLabs will refund any portion of the fees already paid. PromLabs will refund such payments using the same payment method selected in connection with the original transaction. In the event of the granting of a SEPA direct debit mandate, the concurrent chargeback by the Customer is thus not necessary. For the purpose of verifying the personal identity of the account holder, PromLabs is entitled to require evidence such as a copy of an official document from which the current address data can be obtained.
5. Consumers’ Right of Revocation / Widerrufsrecht für Verbraucher
Widerrufsbelehrung für die Lieferung von digitalen Inhalten
Wenn der Käufer Verbraucher ist, steht ihm das folgende Widerrufsrecht zu:
Sie haben das Recht, binnen vierzehn Tagen ohne Angabe von Gründen diesen Vertrag zu widerrufen. Die Widerrufsfrist beträgt vierzehn Tage ab dem Tag des Vertragsschlusses.
Um Ihr Widerrufsrecht auszuüben, müssen Sie uns (PromLabs GmbH, Schönhauser Allee 168, 10435 Berlin, Deutschland, Telefon: +4915253484315, E-Mail: firstname.lastname@example.org) mittels einer eindeutigen Erklärung (z.B. ein mit der Post versandter Brief, Telefax oder E-Mail) über Ihren Entschluss, diesen Vertrag zu widerrufen, informieren. Sie können dafür das beigefügte Muster-Widerrufsformular verwenden, das jedoch nicht vorgeschrieben ist. Zur Wahrung der Widerrufsfrist reicht es aus, dass Sie die Mitteilung über die Ausübung des Widerrufsrechts vor Ablauf der Widerrufsfrist absenden.
Folgen des Widerrufs
Wenn Sie diesen Vertrag widerrufen, haben wir Ihnen alle Zahlungen, die wir von Ihnen erhalten haben, einschließlich der Lieferkosten (mit Ausnahme der zusätzlichen Kosten, die sich daraus ergeben, dass Sie eine andere Art der Lieferung als die von uns angebotene, günstigste Standardlieferung gewählt haben), unverzüglich und spätestens binnen vierzehn Tagen ab dem Tag zurückzuzahlen, an dem die Mitteilung über Ihren Widerruf dieses Vertrags bei uns eingegangen ist. Für diese Rückzahlung verwenden wir dasselbe Zahlungsmittel, das Sie bei der ursprünglichen Transaktion eingesetzt haben, es sei denn, mit Ihnen wurde ausdrücklich etwas anderes vereinbart; in keinem Fall werden Ihnen wegen dieser Rückzahlung Entgelte berechnet.
(Wenn Sie den Vertrag widerrufen wollen, dann füllen Sie bitte dieses Formular aus und senden Sie es zurück.)
–PromLabs GmbH (PromLabs GmbH, Schönhauser Allee 168, 10435 Berlin, Deutschland, Telefon: +4915253484315, E-Mail: email@example.com)
–Hiermit widerrufe(n) ich/wir (*) den von mir/uns (*) abgeschlossenen Vertrag über den Kauf der folgenden Waren (*)/die Erbringung der folgenden Dienstleistung (*)
–Bestellt am (*)/erhalten am (*)
–Name des/der Verbraucher(s)
–Anschrift des/der Verbraucher(s)
–Unterschrift des/der Verbraucher(s) (nur bei Mitteilung auf Papier)
(*) Unzutreffendes streichen.
Informational translation of the Notice of right of withdrawal
Notice of right of withdrawal for supply of goods
Consumers are entitled to the following right of withdrawal when acting as buyer:
You have the right to withdraw from this contract within 14 days without stating any reasons. The withdrawal period amounts to 14 days from the date of conclusion of the contract.
In order to exercise your right of withdrawal, you must inform us (PromLabs GmbH, Schönhauser Allee 168, 10435 Berlin, Germany, Telephone: +4915253484315, email: firstname.lastname@example.orgX) of your decision to withdraw from this contract by means of a clear declaration (e.g. in a letter sent by mail, fax or email). You may use the attached sample withdrawal form, but this is not mandatory. In order to comply with the withdrawal period, it is sufficient to send the notification stating that you wish to exercise the right of withdrawal before the withdrawal period expires.
Consequences of withdrawal
If you withdraw from this contract, we must reimburse all payments which we have received from you, including delivery costs (except for additional costs resulting from choosing a type of delivery other than the most favorable standard delivery offered by us), without delay and no later than fourteen days from the date of receipt of your notice of withdrawal from this contract. For this refund, we will use the same means of payment which you used for the original transaction unless otherwise expressly agreed with you; we will not charge you any fees for this refund in any case.
Sample withdrawal form
(If you wish to withdraw from this contract, please complete and submit this form.)
–PromLabs GmbH (PromLabs GmbH, Schönhauser Allee 168, 10435 Berlin, Germany, Telephone: +4915253484315, email: email@example.com)
–I/We (*) hereby withdraw from the contract concluded by me/us (*) for the purchase of the following goods (+)/the rendering of the following services (*)
–Ordered on (*)/Received on (*)
–Name of the consumer:
–Address of the consumer:
–Signature of the consumer (only if notice of withdrawal on paper) Date
–(*) Delete as appropriate.
6.1 PromLabs holds all rights and titles in the contractual software, its documentation and all other services provided to Customer, including but not limited to Confidential Information, concepts, specifications, integration scenarios, examples of code including all related copies and including all patents, technical property rights, trademarks, copyrights and rights to business secrets of PromLabs.
6.2 PromLabs grants Customer, unless otherwise explicitly stated in the Contract, an ordinary, non-exclusive, non-transferable usage right in relation to the contractual software for the contractually agreed purpose of use of the software and its results and for its own business purposes during the contractually agreed term and for the results for an indefinite term. The Customer is not entitled to otherwise use the contractual software. The usage right is granted conditioned upon full and final payment of the contractually agreed fee (Section 4 of these T&C). Until full payment, the use of the software by Customer is only tolerated by PromLabs and may be revoked at any time.
6.3 In the event of a lease of the contractual software and in case the Customer uses the contractual software in a manner that is not consistent with the granted usage, PromLabs may, in its sole entire discretion, request Customer to immediately cease all inconsistent use or pay an adequate and customary fee for the inconsistent use. All other claims arising from German Law on Copyright and Neighboring Rights (UrhG) are reserved.
6.4 Customer may not copy, translate, decompile, dissemble, reverse-engineer or otherwise modify or adapt the contractual software, the documentation, the service description, literature and other PromLabs-relevant materials.
6.5 The Customer may save the data generated by the contractual software and any raw data located on its computer systems and remains entirely responsible for any loss of such data.
6.7 PromLabs reserves the right to enter into agreements with third parties or enter into agreements about the contractual software and/or Services, including but not limited to third parties that are competitors of Customer. PromLabs is also entitled to develop, market and sell Services that encompass similar functionalities as the contractual software, regardless of the fact whether it is standard software developed by PromLabs or customized software developed for Customer.
7. Representations and Warranties
7.1 PromLabs provides the contractual services in a manner that meets substantially the agreed characteristics.
7.2 In case of deficiencies, the Customer shall immediately notify PromLabs in writing by providing an exact description of the problem and all useful information to remedy the deficiency.
7.3 The laws of lease deficiencies apply to deficiencies in the leased software. The same applies to all other faults related to the use of the leased software. PromLabs guarantees a monthly minimum availability of the contractual software of at least 99,5 % (“Uptime”), if the Customer uses the leased software as a SaaS-Solution. When calculating the availability, downtime due to maintenance of up to 5 hours per month and allowed downtime is not taken into account. Allowed downtime means the following events that result in the unavailability of the contractual software: (i) Force majeure, (ii) Malfunction of the Customer Software and/or computer systems of Customer; (iii) Interruption/non-availability of internet-connection or third party services that PromLabs is not responsible for; (iv) Acts and omissions of Customer; and/or (v) Third party activities, including denial of service attacks.
7.4 The Customer is not entitled to offset any claim for reduction due to defects against the agreed fees other than as set out in these T&C. Respective claims of unjustified enrichment and/or damages are reserved, unless they relate to a breach of the uptime guarantee.
7.5 The right of rescission of Customer for refusal of use according to Sect. 543 par. 2 sub-par. 1 No. 1 BGB is excluded, unless the reestablishment of the agreed use has to be considered as ultimately failed.
7.6 PromLabs does not make any guarantee whatsoever concerning the compatibility of the contractual software with an interface of Customer or with other Customer Software. In the moment of the execution of the Contract, PromLabs is not aware of any incompatibilities of the contractual software with standard web browsers that comply with the standards of the World Wide Web Consortium (W3C) in in its most recent version (e.g. Google Chrome, Firefox, Safari or Edge).
7.7 In case PromLabs provides services during evaluation and remedy of deficiencies without being obliged to provide these services under these T&C, the Contract or by law, PromLabs may invoice the respective effort to Customer. This applies in particular, if a deficiency notified by Customer cannot be proven or as a consequence from Customer having breached its contributory obligations, improperly having used the contractual services or not having accepted the support offered by PromLabs.
7.8 In case of substantial deficiencies that relate to works (Werke) delivered by PromLabs and notified by Customer, PromLabs shall provide supplementary performance either by delivery of a deficiency-free work or by remedy of the deficiency – the choice being at PromLabs’ entire discretion. The supplementary performance may also consist in PromLabs identifying reasonable possibilities to Customer how to avoid the impact of a deficiency. The Customer is not entitled to reimbursement of expenses by PromLabs or by third parties commissioned by PromLabs after the supplementary performance has been executed. In case supplementary performance ultimately fails, the Customer is entitled to reduction or rescission. The limitations set forth in Section 8 apply to claims of damages or reimbursement of expenses caused by deficiencies. The Customer shall have no other rights than the ones set forth in Section 7.8 hereof in relation to deficiencies.
7.9 This Section 7.9 applies neither for services that target a successful rendering of services nor to a temporary assignment of items or rights. In those cases, the Customer shall notify PromLabs in writing if the services are not provided or if the services are provided in a deficient manner and shall set a deadline to provide the services as contractually agreed or to remedy the breach by other means.
PromLabs is only fully liable in the event of intent and gross negligence on the part of their legal representatives and/or vicarious agents as well as in the event of the absence of characteristics for which PromLabs has assumed a guarantee. In the event of negligence, PromLabs shall only be liable if it breaches an obligation which is essential for achieving the purpose of the Contract (cardinal obligation, Kardinalspflicht) - and only to the extent of the foreseeable damage typical of the Contract and limited to an amount corresponding to the overall fee (or the value in case of yearly invoicing) of the last 6 months under the Contract. In this case, PromLabs shall also not be liable for indirect damages, consequential damages and/or loss of profit. Any further liability is excluded. The limitations of liability in this Section 8.1 shall also apply in favor of representatives, employees and third parties acting on behalf of PromLabs.
8.2 The limitations of liability set forth in the preceding Section 8.1 shall not apply to liability for personal injury (injury to life, body, health), fraudulently concealed deficiencies and liability based on mandatory statutory provisions, in particular under the German Product Liability Act (ProdHaftG).
8.3 All claims against PromLabs for damage or reimbursement of wasted expenses are barred after 2 years upon Customer becoming aware of the damage or should have become aware. Regardless of Customer being aware or should have become aware, damage claims are barred 3 years upon the event that has caused the damage. The aforementioned limitation shall not apply in cases where PromLabs acted with intent or gross negligence, in case of personal damage or liability arising from mandatory law, in particular from the ProdHaftG. This Section 8.3 does not apply to time limits for defects.
8.4 Liability for data loss caused by negligence shall be limited to the typical cost of recovery that would have been incurred if backup copies had been made regularly and in accordance with the risks involved.
8.5 The use and/or integration of the contractual software before acceptance is at Customer’s sole risk. All liability of PromLabs is excluded in this case.
8.6 The liability provisions in Sections 8.1, 8.2 and 8.3 apply mutatis mutandis to the Customer.
8.7 PromLabs shall hold Customer fully indemnified against claims of third parties (including statutory legal costs) made against Customer for breach of patent, intellectual property, trademark or other third-party rights by PromLabs if the Customer has used the services in compliance with the Contract.
9. Confidentiality and Data Usage Rights
9.1 PromLabs and the Customer undertake to not disclose to third parties any and all information, documents, knowledge and experience - in whatever form - known or made available to the other party in the course of the execution of the Contract (including the fact that the Contract was concluded) ("Confidential Information") and will take reasonable measures to avoid unauthorized disclosure or misuse of the Confidential Information, including, but not necessarily limited to, taking such security precautions as they take to protect their own Confidential Information. Confidential Information of PromLabs includes but is not limited to information relating to know how, business models, processes, techniques and concepts, to information relating to software of third parties, documentation und product specifications as well as the contents of the offer and the software developed by PromLabs including its source code.
9.2 The confidentiality obligation pursuant to Section 9.1 hereof shall not apply to Confidential Information disclosed by a party if and to the extent that (i) such Confidential Information was already lawfully in its possession prior to disclosure and without confidentiality obligation, (ii) such Confidential Information was disclosed without its fault or otherwise became generally known through with no fault of such party, (iii) such Confidential Information was lawfully disclosed to it by one or more third parties after conclusion of the Contract without confidentiality obligation, i.e. without breach of the Contract by the receiving party, (iv) it is released for disclosure in writing by the disclosing party, (v) it has been independently developed by the disclosing party or any of its affiliates at the time the Contract became effective or thereafter, regardless of disclosure by the other party, (vi) it has been made available by the disclosing party to a third party without any corresponding confidentiality obligations or restrictions, (vii) it must be disclosed in accordance with statutory or administrative provisions, if the disclosing party is immediately notified of this requirement and the scope of the disclosure is restricted as far as possible, or must be disclosed pursuant to a court or administrative decision, if the disclosing party is immediately notified of this decision and if there is no possibility to challenge the decision, or (viii) its disclosure to third parties is necessary for the performance of the Contract.
9.3 The Customer may grant access to Confidential Information that he has received from PromLabs under the Contract, to his employees and employees of its affiliated companies according to Section 15 et seq. Stock Corporation Act (AktG) only on a need to know basis. The Customer may grant third parties access to Confidential Information only if approved by PromLabs. The Customer shall inform all persons he grants access to PromLabs’ Confidential Information about PromLabs’ rights and the confidentiality obligations in relation to such Confidential Information and shall obligate these persons in writing to comply with the confidentiality obligations.
9.4 The confidentiality obligations under this Section 9 shall continue to apply for a period of 2 years after the Contract has expired.
9.5 PromLabs is entitled to use the cooperation with the Customer as reference for its own marketing purposes, in particular in marketing materials (tombstones), press releases or on the internet (e.g. on its homepage). In this regard, PromLabs is entitled to use the company name and the brand presence of Customer (e.g. logo, trademark).
9.6 PromLabs and Customer will agree on additional publications, press releases or other communications that go beyond Section 9.5 before their release.
9.7 The parties shall comply with all applicable data protection laws. The Customer ensures that PromLabs is informed about all relevant facts that PromLabs needs to be aware of due to reasons of data protection and confidentiality. Access data (username, password, license keys, etc.) intended for the protected data access of Customer must be stored carefully and must not be made accessible to unauthorized third parties. If Customer becomes aware that an unauthorized third party has obtained access data or if there is a reasonable suspicion, the Customer shall inform PromLabs immediately in writing.
PromLabs may use the data generated by the contractual software and any raw data provided during and after the term in anonymous form and may combine such data with other data without any restrictions.
10.1 The Contract runs for an indefinite period. PromLabs reserves the right to terminate the Contract for convenience after 2 (two) years at any time upon 30 (thirty) days written notice.
10.2 Regardless of the aforementioned conditions, a termination for cause is always possible. A good cause that allows termination for either party is if (i) a notice of opening of insolvency procedure has been filed against a party or insolvency proceedings have been opened or such opening has been denied for lack of assets, (ii) enforcement measures against a Party have been unsuccessful or enforcement measures against a Party have been imposed and have not been abrogated within 1 month (e.g. arrest abrogation); or (iii) a party is in breach of material provisions of the Contract and/or these T&C or the Contract. A good cause that allows termination for PromLabs is in particular also, if (i) the Customer is in defaults of a considerable part of or all 2 consecutive monthly fee payments, or in default with an amount equivalent or bigger than 2 months’ fee payments over a longer period of time than 2 months; (ii) the Customer ceases its payments or the pecuniary circumstances of the Customer deteriorate materially after the execution of the Contract, (iii) the majority of shares in the Customer has changed (Change of Control) and/or (iv) the Customer is in breach of its contributions obligations to a considerable extent which applies also for a first breach.
10.3 All terminations need to be in writing.
10.4 Upon the effective termination of the Contract (i) each party is obliged to return or to destroy on request all Confidential Information of the other party. The complete return or destruction has to be declared in writing on request. This shall not apply if the receiving party is obligated by law to store them independently and may not delegate such obligation to third parties or in so far as the information and documents may be needed for evidence purposes due to ongoing or pending lawsuits. Confidential Information is also excluded from the aforementioned obligation to destroy if it is secured automatically by backups made by data backup systems to which there is no systematic access; (ii) the Customer has to cease immediately the use of the software, to erase the software from his computer systems and to return all access data and documents concerning the software, including all backup copies to PromLabs; and (iii) all usage rights granted to Customer terminate unless otherwise agreed in the Contract.
10.5 In case of termination, the Customer may not demand repayment of fees paid to PromLabs for services already provided by PromLabs.
11. Online Dispute Resolution
The European Commission has made an online dispute resolution available (“ODR”). The Consumer may access the ODR at http://ec.europa.eu/consumers/odr.
12.1 The most recent version of the T&C in the moment of execution of the Contract applies to the Contract. PromLabs reserves the right to amend these T&C at any time for future business transactions. In the event of an existing Contract, the intended change must be communicated to the Customer in writing. The changes will be deemed approved if the Customer does not raise objections in writing. PromLabs shall provide a special notice as to this consequence in the announcement of the changes. The written objection must be received by PromLabs within 4 weeks of the notification of the changes. If such objection is raised, the Contract will remain in force without the proposed changes. The right of the parties to terminate the Contract remains unaffected thereof.
11.2 The Customer is not entitled, without prior written consent of PromLabs, to assign or transfer all or part of its rights and/or duties under the Contract and these T&C to a third party, unless the Contract stipulates explicitly otherwise. PromLabs is entitled to transfer and/or assign all or part of its rights and duties under this Agreement to an affiliated company according to Section 15 et seq. AktG. The Customer is only entitled to set off with uncontested or valid claims. The Customer may not assign its claims – notwithstanding Sect. 354a German Commercial Code (HGB) – to third parties.
11.2 Place of execution of all services by PromLabs is Berlin, Germany.
11.3 Only German law applies under exclusion of its conflict of law provisions and the United Nations Convention on the International Sales of Goods from 11 April 1980.
11.4 Any disputes under the Contract and these T&C may be brought exclusively (if legally permissible) in the courts located in Berlin, Germany and the parties hereby consent to the personal jurisdiction and venue of these courts, provided the Customer is an Entrepreneur.
11.5 Should one or several provisions of these T&C be or become fully or partly invalid, the validity of the remaining provisions of these T&C will not be affected thereby.
Berlin, March 2021