qomenius GmbH, Matthias-Claudius-Str. 16, 65185 Wiesbaden, Deutschland (hereinafter referred to as „qomenius") operates a cloud-based platform for growth, learning and development (hereinafter referred to as “platform”) Further information on qomenius can be found in the imprint.

1.    Scope

 

1.1    The following General Terms and Conditions ("GTC") apply to the contractual relationship between a company, hereinafter referred to as "Client" and qomenius GmbH, hereinafter referred to as "qomenius".

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1.2    General terms and conditions of the Client that conflict with or deviate from these GTC shall only apply if and to the extent that the qomenius has expressly agreed to them in writing.

2.    Conclusion of Client Contract and Registration of Client Account

2.1    The Client contract is concluded by the completion of the registration process described in the following paragraphs and the acceptance of these General Terms and Conditions by the Client.

2.2    During the purchasing process, the Client must truthfully provide the following data (hereinafter referred to as "profile data"):
•    Company Name
•    First and last name
•    Company Address
•    E-mail address

2.3    In the course of registration, the Client must create a User ID and a password (hereinafter "login data"). The Client is obliged to keep their login data secret. In particular, the Client is prohibited from disclosing the login data to third parties and/or allowing third parties to access the profile by circumventing the registration obligation.

2.4    If the Client culpably violates their above obligations and as a result their user account is used by third parties, the Client is liable for all activities that take place using their user account or login or profile data. qomenius reserves the right to block the user account temporarily or permanently should it become aware of this.

2.5    The Client assures that the profile data used in the creation of their profile are truthfully stated and complete.

2.6    Registration is permitted to any natural person. The purchase of a right to use the platform is only permitted to business clients.

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2.7    We reserve the right to cancel orders placed via our webshop from a country that does not belong to the European Union or that does not participate in  international reverse charge procedures.  

 
3.    Subject matter of the contract

3.1    The platform is operated as a web-based cloud solution. The Client shall be provided with an active link for the use of the platform, which can be used via an Internet connection.

3.2    qomenius provides the Client with the applicable terms of use in the form of a download upon registration of a user account for the Platform. The Client is obliged to accept the terms and conditions given therein prior to its use of the Platform and to comply with them when using the Platform.

3.3    qomenius provides the contractual services, in particular access to the platform. The scope of services, the quality, the purpose of use and the conditions of use of the contractual services are set out in the respective product and service description.

3.4    If the service cannot be provided in whole or in part for reasons for which the Client is responsible, the Client nevertheless remains obligated to make payment.

3.5    Both platform and content are subject to constant further development. It is ensured that the client always receives the latest version.

4.    Remuneration and Payment

4.1    In case of payment by online payment methods (e.g. PayPal) and by credit card, Apple Pay, Giropay or Sofortüberweisung, the Client expressly authorizes qomenius to collect the amounts due at the time of the order. When paying with PayPal, the Client will be redirected to the PayPal website during the ordering process to make the payment via his PayPal account.

4.2    Invoices are sent electronically to the Client's invoicing e-mail address.

4.3    All prices are subject to the applicable statutory value added tax.
 

5.    Technical Requirements

5.1    For registration and use, the Client requires end devices with a suitable operating system, a current version of a web browser and an internet connection that allows undisturbed access to the Platform. Furthermore, a tool for video conferencing is needed. The Client is obliged to procure and maintain the hardware and connections to public telecommunications networks and a video conferencing tool required by him.

5.2    The Client shall be solely responsible for the implementation and maintenance of the technical requirements within the Client's area of responsibility for the contractual use of the Platform. The Client shall bear the costs for setting up the online connection as well as the maintenance costs on the part of the Client.

5.3    Liability for disruptions in data transmission caused by technical errors or configuration problems on the part of the Client, as well as liability for the security and continuity of data communication conducted via third-party communication networks, is excluded.

5.4    The Client is responsible for the hardware and software used by him as well as for the communication channels used by him. The obligation to pay the remuneration shall remain unaffected by a failure of the hardware and software used by the Client.

5.5    The usability of the Platform´s functions requires that the Client's end devices accept the cookies transmitted by the

Platform and that these are not changed during the session and, if possible, are not deleted. qomenius only uses so-called session cookies (also referred to as temporary cookies) on the Platform that are technically absolutely necessary. Session cookies are temporarily stored exclusively for the duration of the use of the Platform. The purpose of these cookies is to identify the Client's computer during a visit to the website and to be able to determine the end of the visit. In order to use the full range of functions of the Platform, it is necessary to allow session cookies.

6.    Availability and Maintenance

6.1    The Client acknowledges that 100% availability of the Website and the Platform is not technically feasible. However, qomenius shall endeavor to keep the Website and Platform available as constantly as possible. In particular, maintenance, security or capacity issues as well as events beyond the control of qomenius (such as disruptions of public communication networks, power outages, etc.) may lead to short-term disruptions or to the temporary suspension of the Platform and the Website.

6.2    qomenius is at liberty to restrict access to the platform in whole or in part, temporarily or permanently, due to maintenance work, capacity concerns and due to other events that are not within its sphere of responsibility.

7.    Right of Use

7.1    For the term of the Client Contract, the Client shall be granted the non-exclusive, non-transferable, non-assignable or sub-licensable right to browser-based use of the Platform, which shall be limited by the provisions of these General Terms and Conditions.

7.2    The Client is not granted any copyright or other rights of use to the Platform or other protectable intellectual property of qomenius that go beyond the Client Contract.

8.    Data Protection

8.1    Within the framework of the Client Contract, qomenius, as the Controller within the meaning of Article 4 No. 7 of the EU General Data Protection Regulation (GDPR), processes the Client's personal data required to initiate, implement and terminate the contract.

8.2    qomenius processes all personal data of the Client exclusively in accordance with the applicable data protection laws, in particular in compliance with the provisions of the GDPR. Further information on data processing can be found in the Privacy Policy, available at [Link].

8.3    If and to the extent necessary, qomenius and the Client will conclude a Data Processing Agreement within the meaning of Art. 28 GDPR.

9.    Liability

9.1    qomenius is liable for claims for damages arising from slight negligence only insofar as essential contractual obligations (cardinal obligations) have been breached. A cardinal obligation is an obligation on whose compliance the Client could rely and whose fulfilment makes the proper execution of the contract possible in the first place. In this case, claims for damages are limited to the amount of the typical foreseeable damage.

9.2    qomenius assumes no liability for damages or impairments of use for which it is not responsible; in particular, the validity of Section 536a BGB is excluded. Furthermore, qomenius is not liable for disruptions and loss of quality of data transmission on the Internet for which qomenius is not responsible and which impede or prevent the use of functions of the Platform.

9.3    Insofar as the liability of qomenius is excluded or limited, this shall also apply to the personal liability of the employees, representatives and vicarious agents of qomenius.

10.    Third Party Property Rights and Indemnification

10.1    The Client is obliged not to infringe any rights of third parties during and in connection with the use of the Platform and to ensure that the contractual provision of services by qomenius also does not infringe any such rights in this respect.

10.2    In the event that a third party claims against qomenius the infringement of its rights due to the Client's conduct in connection with the use of the Platform, the Client shall indemnify qomenius against all related claims of the third party upon first request and compensate qomenius for any damage incurred due to the right of the third party, including any court and legal costs incurred for the legal defence. This does not apply if the Client proves that he is not responsible for the infringement.
 

11.    Contract Term and Retention

11.1    The acquired rights of use shall be provided for 18 months. After the expiry of this period qomenius is not obliged to provide services.

11.2    After termination of the Agreement, the qomenius is entitled to delete the Client's User Account and all data stored for the benefit of the Client, unless legal provisions that are mandatory for the activities of qomenius stipulate otherwise. The Client himself is responsible for any storage of its data in its own systems. qomenius is not obliged to restore the data.

12.    Amendment of these General Terms and Conditions

12.1    qomenius reserves the right to change these General Terms and Conditions at any time with effect for the future, in

particular if such a change is necessary due to changes in the law or case law or other significant changes in the underlying framework conditions.

12.2    qomenius will inform the Client of the change to the GTC by e-mail at least six weeks before it is scheduled to take effect. The Client is entitled to object to the change no later than two weeks before it is scheduled to take effect.

12.3    If the Client does not object or does not object in due time in text form, this shall be deemed to be the Client's consent to the amendment of the GTC and the new provisions shall enter into force vis-à-vis the Client.

12.4    If the Client objects to the change in the GTC in due time, qomenius has the choice of continuing the contractual relationship with the Client affected by the change under the continuation of the old regulation or terminating it without notice as of the date on which the planned change takes effect.

12.5    In the notification of change, qomenius shall specifically inform the Client of qomenius' right of termination, the objection period to be observed by the Client and the consequences of an objection.

13.    Final Provisions

13.1    The GTC are governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and international contract law.

13.2    The Client may not assign, in whole or in part, the rights and obligations incumbent upon them under these General Terms and Conditions and the Client Contract without the prior written consent of qomenius. The provision in Section 354a German Commercial Code (“HGB”) remains unaffected.

13.3    The place of performance and jurisdiction for all disputes arising from and in connection with these GTC and the Client Contract is Wiesbaden, insofar as this is legally permissible.

13.4    Should individual provisions of these GTC be or become invalid, unenforceable or incomplete, this shall not affect the validity of the remaining provisions of the GTC. Instead of the invalid, unenforceable or missing provision, the corresponding statutory provisions shall apply.