The following General Terms and Conditions (hereafter referred to as “GTC”) govern the contractual relationship between rho data GmbH, Friedrichstraße 9, 70174 Stuttgart (hereinafter referred to as “Service Provider”) and the respective contracting customer (hereafter referred to as “Customer”).
These GTC shall only apply vis-à-vis an entrepreneur (individual or legal entity) or a legal person under public law or a special fund under public law within the meaning of Section 310 para. 1 BGB (German Civil Code). Anyone who enters into a contract for a company to use the Service Provider's services under these GTC represents that they have sufficient authority to enter into a legally binding contract with the Service Provider on behalf of the Customer.
No conflicting or other terms and conditions, in particular Costumer’s general terms and conditions, form any part of the contractual relationship, even where the Service Provider has executed or performed the contractual relationship without expressly rejecting such terms and conditions. If, for reasons related to Customer’s technical arrangements or otherwise, Customer’s terms and conditions of purchase or other standard terms are included by insertion, reference, enclosure, attachment or otherwise in Customer’s order of the Contractual Services, Customer cannot rely on those conditions or terms and they are not incorporated in and do not form any part of the contractual relationship and failure to expressly exclude them does not imply their acceptance.
1. Subject matter of the contract; conclusion of the contract
1.1 Subject of any contract based on these GTC is the provision of an advanced training seminar program for leadership members and employees of the Customer (hereafter referred to as “User”) through a microlearning software of the Service Provider (hereinafter referred to as “Gyde Software”) and virtual group coaching sessions (hereafter together referred to as “Contractual Services”).
1.2 The amount of Users, the content or focus of the training, the length of the seminar program, the amount of virtual coaching sessions and training sections are defined in a separate contract or Offer sheet of the Service Provider (hereafter referred to as “Offer sheet”) these GTC apply to.
1.3 A contract according to these GTC is formed if the Customer has concluded a separate contract or accepting an Offer sheet of the Service Provider while accepting these GTC.
1.4 The contract between the Service Provider and the Customer based on these GTC (hereinafter referred to as “Agreement”) consists of 1) these GTC 2) an Offer sheet or a separate contract between the parties or if none if these apply the current pricelist of the Service Provider, available upon request.
1.5 The Offer sheet and the separate contract can contain individual agreements regarding the Agreement. Such agreements shall only valid if they are set out in writing. In the event of any conflict between an individual agreement and these GTC, the individual agreements shall prevail.
2. Virtual Coaching Sessions
2.1 As a part of the Contractual Services, the Service Provider will host coaching sessions via Google Meets or a comparable videoconferencing service in accordance with the agreed course schedule. These sessions are held by a professional Coach of the Service Provider or a coach appointed by the Service Provider (hereafter referred to as “Coach”) with the Users designated by the Customer.
2.2 The Service Provider sends invitations to the agreed coaching sessions to the e-mail addresses provided by the Customer.
2.3 The Customer must ensure that its users are available for the coaching sessions on the agreed dates and that the Users are technically equipped and familiar with their own systems in such a way that they can participate in the sessions.
2.4 The respective Coach has access to the answers that the Users of his course enter into the Gyde Software in order to prepare and conduct the coaching sessions. The Coaches are aware of and committed to data secrecy. The respective User can object to the Coaches' access to his/her data. In this case, the Coach has no access to the answers entered in the Gyde Software. The Customer is aware that in this case the success of the coaching program is reduced.
3. Rights of Use for the Gyde Software
3.1 The Service Provider grants the Customer the non-exclusive, non-transferable, non-sublicensable right, limited in time for the duration of the Agreement, to use the Gyde Software within the scope and in accordance with the Agreement for the number of Users set forth in the Offer sheet or separate contract.
3.2 The Gyde Software is provided as agreed upon in an Offer sheet or in a separate contract as a Software-as-a-Service solution (“SaaS”) via cloud computing or as a smartphone application. The smartphone application can be downloaded via the Apple App Store and Google Play Store, and can be used on the latest version of iOS and Android.
3.3 The SaaS version of the Gyde Software can be used via the Google Chrome web browser.
3.4 The Customer may only use the Gyde Software for its own internal purposes of training his Users. In particular, the Customer is not entitled to use the Gyde Software for other commercial services towards third parties, in particular, but not limited to services that consist exclusively or predominantly in the use and application of the Gyde Software.
4. Registration and Account Management
4.1 The Service Provider will enable the registration for the specific amount of Users’ e-mail-addresses agreed upon in the Offer sheet or the separate contract. For this purpose, the Customer hands over the email addresses as well as first and last names to the Service Provider. Then the selected Users of the Customer can register their accounts in the smartphone application or SaaS solution with their email address and a secure password after accepting the Use Policy and declaration of consent into the data processing.
4.2 The Service Provider may block an account if there are indications that it has been used in an unauthorized manner and/or that there is an attempt to gain unauthorized access to the Gyde Software or the underlying systems of the Service Provider from the User account (“Hacking”). In such a case, the Service Provider shall immediately notify the Customer (via the contact data existing at the time of conclusion of the Agreement) and shall restore access to the User by creating a new account, unless there is evidence that suggest that the Customer or User has attempted to gain unauthorized access to the systems of the Service Provider. If the Customer does not remedy or stops such unauthorized access to the systems within a period of 10 days after the Service Provider has indicated such unauthorized access, the Service Provider has the right to terminate the Agreement for cause with immediate effect.
5. Data Protection
5.1 The Customer shall ensure that it is demonstrably authorized to pass on the Users’ personal data to the Service Provider, insofar as this is necessary for the contractually agreed provision of services, and that the data protection requirements for this are met. This applies in particular to the disclosure of the first and last names and e-mail addresses of the Users for the purpose of initiating the pre-registration process in accordance with section 4.1. The Provider reserves the right to demand proof of authorization.
5.2 For the provision of the contractual services and the further development of the Gyde Software, the Provider independently collects and processes personal data of the Users. This processing takes place exclusively for internal purposes of the provider as well as for the provision of the contractual services to the respective customers and Users. For this purpose, the Provider will obtain a corresponding data protection consent declaration from the Users when they register their user accounts for the use of the Gyde Software, as described in section 4.1 of these GTC. The contractual services within the scope of this contract can only be provided and made available to the respective User if the user has given their consent. The Service Provider will inform the Customer immediately if a User refuses or revokes their consent. In this case, the Service Provider will block or delete the account of the respective User.
If no separate non-disclosure agreement has been entered into, the following provisions shall apply:
6.1 “Confidential Information” means all information which the Service Provider or the Customer protects against unrestricted disclosure to others, or that are deemed confidential according to the circumstances of their disclosure or their content. In any case, the following information is considered to be Confidential Information of the Service Provider: the Gyde Software, programs, tools, data and other material that the Service Provider provides to the Customer before or on the basis of the Agreement. The Customer and the Service Provider will keep strictly confidential all exchanged Confidential Information. Neither the Customer nor the Service Provider will use, disclose or record the Confidential Information unless necessary to fulfil the purposes of the Agreement.
6.2 Excluded from the obligations under 6.1 are information that are,
6.2.1 publicly known by the time of entering into this Agreement or become publicly known afterwards without a breach of this Agreement or another contract between the Customer and the Service Provider,
6.2.2 disclosed with prior consent of the owner of the Confidential Information,
6.2.3 disclosed pursuant to a judgment or decision of a court or authority. To the extent permitted by law, the Customer and the Service Provider will notify each other of any such judgment or decision and give the affected party the opportunity to appeal the judgment or decision.
6.3 The Customer and the Service Provider will disclose the Confidential Information only to employees and the Coaches who have a need to know such information for the purposes of this Agreement and who have been instructed to maintain appropriate confidentiality.
7.1 Within the scope of technical possibilities, the Service Provider will provide the Gyde Software in the latest version. The Service Provider will inform the Customer about all changes that affect the provision of the Contractual Services. A notification is not required if the Service Provider only carries out a defect removal.
7.2 The Service Provider is constantly developing the Gyde Software. Therefore, the Service Provider will provide the Customer with updates of the Gyde Software. However, the Customer has no right to be provided with updates. In particular, the Service Provider is not obliged to adapt the Gyde Software to new laws and regulations without a separate agreement and further compensation. If the Customer wishes certain adaptations and further developments, he can make a request to the Service Provider. The Service Provider will examine the request and submit an offer to the Customer under consideration of his technical, personnel and temporal resources, provided that the request is realizable.
7.3 An update or modification of the Gyde Software can resolve in an adaption of the compatible web browsers and smartphone operating system. In this case the Customer and his Users have to update the respective web browser and/or smartphone operating system.
8.1 The Service Provider provides the Gyde Software via the Internet from Monday to Sunday from 0:00 to 24:00 Central European Time ("CET"). During this period, the Service Provider warrants the availability mentioned in Section 8.5. The Service Provider is entitled to interrupt the provision of the Gyde Software daily between 22:00 and 5:00 CET in order to perform maintenance work. The Service Provider will try to inform the User at least 3 days in advance about upcoming maintenance works. If maintenance work or bug fixes become necessary or appear unplanned and unpredictable, the Service Provider will inform the Customer as soon as possible about the situation and the duration of the interruption of the provision of the Contractual Services.
8.2 Adjustments, changes and additions of the Gyde Software as well as measures for the determination and elimination of defects only lead to an interruption of the Contractual Services if the interruption is technically necessary.
8.3 The availability of the Contractual Services is monitored from Monday to Friday from 9:00 to 17:00 CET.
8.4 The Service Provider shall initiate the maintenance without undue delay within his business hours pursuant to 8.3 if he detects any defects or the Customer or his Users inform the Service Provider. The Service Provider shall inform the Users, or the Customer if the latter has informed the Service Provider about the defects, about the maintenance work and complete the maintenance work as soon as possible.
8.5 The Service Provider warrants 95% availability of the Gyde Software over the course of a year, excluding maintenance periods. As the coaching sessions are conducted via the third-party video conferencing software, the Service Provider does not warrant or guarantee the availability of the video conferencing software. If the video conferencing software is not available on the agreed date of a coaching session, the Service Provider will do his best to arrange a new date with the Customer and his Users or provide the coaching session via another video conferencing software solution.
8.6 No defect shall be deemed to exist if the connection of the Customer or the User from his device to the internet is disrupted (e.g. interruption of the service provision of Internet or telecommunication providers), if the defect has arisen due to use contrary to the contract or the Users are not able to use the Contractual Services because they do not have the required devices or are not able to operate their device or Contractual Service properly. These cases shall not be counted towards the availability in sec. 8.5.
8.7 The Service Provider is not responsible for any interruption in availability of the Gyde software caused directly or indirectly by (i) scheduled or emergency maintenance, or (ii) any third party network, third party telecommunication or transmission service, third party software or hardware, or power outage.
9. Customer Obligations
9.1 The Customer undertakes not to store or enter any content or data in the Gyde Software that violates the law, regulatory requirements or rights of third parties. The Customer will also inform and oblige his Users accordingly.
9.2 Since the Customer determines and controls which Users have access to the Gyde Software, the Customer is responsible for ensuring that the Users comply with the terms of the Agreement.
9.3 For the fulfilment of the Agreement, the Service Provider grants access permissions to the Users of the Customer. The Customer is responsible for ensuring that access permissions are not disclosed or passed on to third parties. The Customer is obliged to inform the Service Provider immediately if he suspects misuse of access permissions and/or accounts or other security incidents in connection with the Contractual Services.
9.4 Since the virtual coaching sessions may also be conducted with third party Users, the Customer shall ensure that its Users do not disclose any confidential information of the Customer. The Customer shall instruct its Users accordingly. At the first virtual coaching session, also the Service Provider will inform all attending Users of their obligation to maintain confidentiality, but the Service Provider will not assume any liability for any disclosure by the Users in this regard.
10. Acceptable Use Policy
10.1 In addition to other prohibitions as set forth in these GTC, the Customer and his Users are prohibited from using the Contractual Services:
- for any unlawful purpose
- to solicit others to perform or participate in any unlawful acts
- to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances
- to infringe upon or violate Service Provider’s intellectual property rights or the intellectual property rights of others
- to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability
- to submit false or misleading information
- to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Contractual Services
- to spam, phish, pharm, pretext, spider, crawl, or scrape
- to interfere with or circumvent the security features of the Contractual Services
10.2 The Service Provider reserves the right to terminate the Agreement for the use of the Contractual Services for cause immediately if Customer violate any of the prohibited uses set forth in Clause 10.1 in the use of the Contractual Services in Customer’s area of responsibility.
11. Third-Party Rights, Indemnification
11.1 The Service Provider will defend the Customer from and against any third-party claim to the extent alleging that the Contractual Services, when used by the Customer and his Users as authorized in the Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless the Customer against any damages or costs awarded against the Customer (including reasonable attorneys’ fees) or agreed in settlement by the Service Provider resulting from the claim.
11.2 The Customer will defend the Service Provider from and against any third-party claim to the extent resulting Customer’s breach or alleged breach of these GTC, in particular sec. 9 (Customer Obligations) and sec. 10 (Acceptable Use Policy), and will indemnify and hold harmless the Service Provider against any damages or costs awarded against the Service Provider (including reasonable attorneys’ fees) or agreed in settlement by the Customer resulting from the claim.
11.3 The indemnifying party’s obligations in this sec. 11 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Contractual Services, when the Service Provider is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
11.4 In response to an actual or potential infringement claim, if required by settlement or injunction or as the Service Provider determines necessary to avoid material liability, the Service Provider may at its option: (a) procure rights for Customer’s continued use of the Contractual Services, (b) replace or modify the allegedly infringing portion of the Contractual Services to avoid infringement without reducing the Contractual Service’s overall functionality or (c) terminate the affected Agreement and refund to Customer any pre-paid, unused remuneration for the terminated portion of the term and the period during which the Contractual Services could not be used. The Service Provider’s obligations in this sec. 11 do not apply (1) to the extent infringement results from Customer’s and User’s modification of the Contractual Services or use of the Contractual Services in combination with interfaces or software not authorized by the Service Provider, (2) to infringement resulting from software other than the most recent release provided by the Service Provider, (3) to unauthorized use of the Contractual Services, (4) if Customer settles or makes any admissions about a claim without the Service Provider’s prior consent or (5) if the Customer continues to use the Contractual Services (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement. This sec. 11 sets out Customer’s exclusive remedy and the Service Provider’s entire liability regarding infringement of third-party intellectual property rights.
12.1 A defect shall only exist if the Gyde Software does not have the contractually agreed performance, is not suitable for the contractually presumed use or infringe any third-party rights. In the case of an infringement of a third-party right sec. 11 shall apply. Public statements about the performance of the Gyde Software, in particular in advertisings, do not constitute guarantees, representations or warranties.
12.2 Claims due to minor deviations that do not impair the agreed performance of the Gyde Software shall be excluded. It is considered as a minor deviation if the Gyde Software runs slowly. Malfunctions due to improper use of the Gyde Software are not defects that give rise to claims against the Service Provider.
12.3 If the Gyde Software is deficient, the Service Provider will remedy the deficiencies as a supplementary performance (“Nacherfüllung”) within a reasonable time. The Service Provider has at least two attempts to remedy the defect. One of the ways the Service Provider may remedy a defect is to indicate to the Customer a reasonable way to avoid the effect of the defect.If the supplementary performance fails and the Service Provider is responsible for this, you may assert your statutory warranty rights.The Service Provider is liable for defects of the Gyde Software that were already present at the time of the conclusion of the Agreement only if the Service Provider is responsible for such defects.Customer has to inform the Service Provider about any defects immediately via e-mail at firstname.lastname@example.org. The Service Provider will take note of this and inform the Customer about the further proceedings.
13. Terms of payment
13.1 The remuneration for the provision of the Contractual Services results from the Offer sheet or the separate contract to these GTC. If the remuneration is not specified in the aforementioned documents, the remuneration shall be based on the price list of the Service Provider valid at the time of the conclusion of the Agreement. The price list is available upon request.
13.2 Unless otherwise agreed, remuneration shall be due in advance and payable within 30 days calculated from the date of the corresponding invoice.
13.3 Unless otherwise agreed in writing, all prices are net in EURO.
13.4 All amounts payable by the Customer under this Agreement are exclusive of any applicable taxes, levies, duties, or similar governmental assessments of any nature (including value-added, sales, and use taxes, but excluding withholding taxes and taxes based on the Service Provider’s income, property, or employees) (“Taxes”) that may arise in connection with or due to this Agreement. If any such Taxes arise, the Customer will pay such Taxes in addition to all other amounts payable under this Agreement, unless the Customer provides the Service Provider with a valid tax exemption certificate or other documentary proof, issued by an appropriate taxing authority, that no tax should be charged. If the Customer is required by law to withhold any Taxes from its payments to the Service Provider, the Customer must provide the Service Provider with an official tax receipt or other appropriate documentation to support such payments.
13.5 If the Customer does not pay the renumeration within the agreed period or, if no payment period has been agreed, within the period pursuant to 13.2, the Service Provider has the right to claim interest for delayed payment of 9 percentage points above the applicable base interest rate of the Deutsche Bundesbank. The right of the Service Provider to claim further damages remains unaffected.
13.6 If the Service Provider unsuccessfully sets another payment deadline after the Customer is already in default of payment, the Service Provider shall have the right to block the access permissions and to interrupt the provision of the Contractual Services until the Customer's payment has been received. The Customer's obligation to pay the remuneration shall not be affected by the interruption of the Contractual Services due to the delay in payment.
13.7 If the delay in payment lasts longer than a month after the additional payment deadline pursuant to sec. 13.6 has expired or if the customer is in default with at least two consecutive payments, the Service Provider shall be entitled to terminate the Agreement for cause and/or to withdraw from it. Any further claims of the Service Provider shall remain unaffected.
14.1 The Service Provider is liable for damages (including expenses) regardless of the legal reason (e.g. damages resulting from breach of the Agreement or quasi contract, neglect of duty, tort) as follows:In case of injury to life, body or health, in case of claims based on the German Product Liability Act and in other cases in which Service Provider’s liability may not be excluded or limited according to mandatory laws, the Service Provider is liable according to statutory laws.
14.1.1 In case of damages caused by wilful intent, the Service Provider is liable according to statutory laws.
14.1.2 In case of gross negligence of Service Provider’s legal representatives and executives, the Service Provider is liable according to statutory laws.
14.1.3 In case of gross negligence of Service Provider’s vicarious agents (Erfüllungsgehilfen), the Service Provider is liable according to statutory laws if a Cardinal Duty was breached;
14.1.4 in case of breach of a duty that is not a Cardinal Duty, Service Provider’s liability is limited to the typical contractual damage which was foreseeable when the parties entered into the Agreement. A Cardinal duty is any obligation, the fulfilment of which is a prerequisite for enabling the proper fulfilment of the Agreement in the first place and in the observance of which the Customer may normally trust ("Cardinal Duty").
14.1.5 In case of slight negligence resulting in a breach of a Cardinal Duty, Service Provider’s liability is limited to the typical contractual damages foreseeable at the time the Agreement was concluded.
14.1.6 In all other cases Service Provider’s liability is excluded. In particular, any no-fault liability of the Service Provider, which is liability irrespective of culpability (e.g. according to Section 536a para. 1 BGB), for damages arising from malperformance which is present at the time of conclusion of the Agreement is excluded.
14.2 The Service Provider shall not be liable for any decisions made by a User towards the Customer during or after the provision of the Contractual Services. This applies regardless of whether a Coach has advised the User in this regard.
14.3 The Service Provider may invoke contributory negligence on Customer’s part. The Customer is especially obliged to employ virus protection according to the current state of the art. In the case of a loss of data culpably caused by the Service Provider, Service Provider’s liability is limited to the expenses that are incurred if routine backups are properly made and virus protection properly employed.
14.4 For the avoidance of doubt, this sec. 14 also applies to the extent the legal reason for Service Provider’s liability results from data protection law.
15. Term and Termination
15.1 The term of the Agreement is specified in the Offer sheet or in the separate contract.
15.2 The right of the parties to terminate the Agreement for cause remains unaffected. Cause is given if, after taking all individual circumstances as well as the interests of the parties into account, the terminating party cannot be expected to continue with the contractual relationship. If a material contractual obligation is breached, termination for cause is only admissible if the party in breach has failed to remedy the breach within a reasonable period of time after having received a notice from the other party specifying the breach, requiring its remedy and setting out the intention to terminate if the breach is not remedied, unless the foundation of trust for the continuation of the contractual relationship was destroyed by the first breach of a contractual obligation in such a way that it cannot be restored by the notice to remedy the breach.
15.3 Any notice of termination must be in writing to be effective unless otherwise agreed in the separate contract.
16. Changes of these GTC
16.1 The Service Provider reserves the right to amend these GTC if this is necessary due to changes in the Contractual Services or legal circumstances as new mandatory laws or supreme court decisions.
16.2 The Service Provider will inform the Customer six weeks in advance about the amended GTC.
16.3 The Customer can object against the amended GTC or immediately terminate the Agreement in writing.
16.4 If the Customer does not object or terminate the Agreement within the period specified in sec. 16.2, the amended GTC shall replace the agreed former GTC and shall apply to the Contractual Services after expiry of this period.
16.5 The Service Provider will inform the Customer about Customer’s rights and the consequences stipulated in this sec. 16 together with the information about the amended GTC.
17.1 All changes and additions to this Agreement, except in cases of sec. 16, must be made in writing or must at least contain a simple or advanced electronic signature. This shall also apply to any changes to this written form clause.
17.2 The Agreement will be governed by, and construed in accordance with, the laws of the Federal Republic of Germany. The rules of private international law and the Vienna Convention on the International Sale of Goods (CISG) shall not apply.
17.3 Exclusive place of jurisdiction for any disputes associated with and resulting from the Contract shall be at the registered office of the Service Provider, to the extent permitted by law. The Service Provider shall, however, also be entitled to take legal action before the courts of competent jurisdiction over Customer’s place of business.
17.4 The place of performance for all Contractual Services of the Service Provider shall be at the registered office of the Service Provider.
17.5 Should any provision of the Agreement be or become invalid, this shall not affect the validity of the remaining terms. The parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the Contract.