General Terms and Conditions (“GTC”) Business by D2C digital GmbH
Operating as PAPAGEI – digital learning solutions, D2C digital GmbH is a provider of innovative, highly efficient video-based online trainings and offers digitalisation services of in-house trainings as mobile learning, with live sessions and in blended learning formats for companies, institutions and private individuals. In the event that a valid contract is concluded, the General Terms and Conditions set out below shall be deemed to have been agreed between the parties.
For the purpose of these General Terms and Conditions, a Client shall be any natural or legal person who/which enters into a legal transaction with D2C digital GmbH (as owner of the brand PAPAGEI – digital learning solutions and the services offered thereunder) for a purpose that is attributable either to a commercial or independent professional activity. The same shall apply to corporate bodies of public law or similar legal entities.
1 Subject Matter and Scope of Applicability
1.1 These General Terms and Conditions shall govern the legal framework between D2C digital GmbH and the Client.
1.2 These General Terms and Conditions shall not apply if the Client is a consumer as defined by § 13 of the German Civil Code (BGB). Unless D2C digital GmbH has given its expressed consent in writing, D2C digital GmbH will not accept any diverging conditions of the Client.
1.3 The General Terms and Conditions shall apply even if D2C digital GmbH unreservedly provides the services in respect of which an order has been placed, even though it knows that the Client’s conditions provide otherwise or deviate from these General Terms and Conditions.
2 Conclusion and Subject Matter of the Contract
2.1 The presentation and descriptions of the products on the website or in the shop of D2C digital GmbH do not represent a legally binding offer. Rather, they are a legally non-binding invitation to make an offer (“invitato ad offerendum”).
2.2 Based on a Client inquiry, D2C digital GmbH will, by email or in writing, prepare a binding offer which is explicitly marked as an “offer”. D2C digital GmbH shall be bound to the offer until the offer end date which is referred to in the offer.
2.3 In principle, a contract which is binding upon both parties shall be concluded by an electronic or written declaration of acceptance on the part of the Client.
2.4 Despite constant updating, individual differences with regard to the content of the products in comparison with the presentation on the internet pages may be possible due to technical conditions and shall remain reserved. The descriptions solely serve to determine the respective product and shall not represent a quality specification. The condition and quality of the respective product is exclusively determined on the basis of the offer prepared by D2C digital GmbH. Public statements, promoting or advertising by D2C digital GmbH or third parties shall not constitute a specification of quality either.
2.5 In the event that a contract is concluded, the contract is entered into with
D2C digital GmbH
Augsburg District Court, register number HRB 38167
2.6 On the part of the Client, any and all representations that are essential to the contract shall be made by persons who are in general or in a particular individual case authorised to represent them. D2C digital GmbH shall reserve the right to demand presentation of the power of representation.
2.7 The scope of performance owed by D2C digital GmbH under the contract shall be determined by the Client in his/her/its order and confirmed by D2C digital GmbH by means of an offer or order confirmation. Questions as to how many and what kind of employees of the Client may use the offer and to what extent a change of user at the employee level is permissible shall also be governed by the provisions laid down in the offer or order confirmation.
2.8 In order to guarantee a high level of security standards, users may access the contents of D2C digital GmbH only if they have a personal password. This password may not be passed on to third parties. The Client must make sure, to the extent that this is feasible for him/her/it, that appropriate security measures have been taken (e.g. by raising specific awareness thereof with the employees) in order to prevent that the password is passed on to third parties. If there is a misuse of the individual password or any other misuse in connection with the access, D2C digital GmbH shall be authorised to block the access temporarily or definitely, irrespective of its right to extraordinary cancellation of the contract and/or its right to assert damages.
3 Termination of Contract / Cancellation
3.1 In the following cases, the Client’s contractual obligations to D2C digital GmbH shall expire automatically; a cancellation on the part of the Client shall not be necessary:
(a) Products with a fixed duration
(b) One-off purchase products
(c) Voucher codes with a maximum duration
(d) Digitalisation, individual production of interactive learning courses/objects.
3.2 The following shall apply to all products: Unless otherwise individually agreed with the Client, contracts shall be concluded for a definite period of time and shall end automatically at the end of duration.
3.3 Any offer free of charge may be cancelled by each party at any time.
3.4 The cancellation of a fee-based offer must be made by letter or email (email@example.com). D2C digital GmbH shall confirm the cancellation by letter or email. The right to extraordinary cancellation for good cause – e.g. for attributable exceeding of the agreed extent of use – shall remain unaffected.
3.5 After the end of the contract, any and all content in the user account shall be deleted.
Unless an individual fixed price agreement has been made with the Client, the current price list shall apply. Prices do not include value added tax which will be shown on the invoice.
5 Payment Terms
5.1 Any amounts due shall be settled either by bank transfer or direct debit. The invoice must be paid without deduction within a period of seven days after it has been received. Direct debits shall be made at the beginning of each settlement period.
5.2 In case the payment is not made within 30 days after reception of the invoice, default interest amounting to eight per cent above the basic interest rate of the European Central Bank may be calculated and claimed with no separate reminder notice or payment reminder being necessary. The statutory default regulations shall be deemed to have been agreed, in particular § 286(3) BGB (German Civil Code).
5.3 If no debiting has occurred, D2C digital GmbH shall reserve the right to suspend access to the D2C digital GmbH content temporarily or definitely. If a sum of at least two settlement amounts is due, D2C digital GmbH shall have the right to extraordinary cancellation pursuant to item 3.5 hereof. If, in case of direct debiting, there is a return debit note, Clients shall be charged an additional fee of € 10.00 for administrative costs and banking fees.
5.4 Invoices shall be issued in a form which shall meet the requirements set out in §14 of the German Value Added Tax Act.
6 Warranty and Liability
6.1 D2C digital GmbH strives to make the best content possible accessible to its Clients. However, no liability shall be assumed for the contents being up to date, free of errors, complete or of a certain quality; this shall apply in particular to information provided by other users.
6.2 Despite reasonable efforts, D2C digital GmbH will not provide any warranty for proper operations or uninterrupted accessibility. There shall be no liability for technical transmission blackouts.
6.3 D2C digital GmbH will not assume any liability in the event that the use of data has resulted in alleged infringements of rights and that claims are asserted against the Client as a result thereof.
6.4 D2C digital GmbH shall be liable exclusively for intent and gross negligence. Furthermore, D2C digital GmbH shall be liable for the negligent violation of duties the fulfilment of which is a prerequisite for a proper execution of the contract in the first place, the violation of which jeopardises the realisation of the subject matter of the contract and whose fulfilment can be reasonably relied upon by the Client. In the last-mentioned case, however, D2C digital GmbH may be held liable only for foreseeable damage typical of the contract. To the extent that this legally permissible, D2C digital GmbH shall not be liable for loss of profit, indirect damage, incidental damage or consequential damage resulting from defects. D2C digital GmbH shall not be liable for a slightly negligent violation of duties other than those set out in the sentences above. The above exclusions of liability shall not apply in cases of loss of life or injury to body or health. Liability as regulated by the German Product Liability Act shall remain unaffected.
6.5 In order to ensure proper operations of the Internet services, D2C digital GmbH applies generally used technologies which comply with current standards. It is required that the Client also uses these technologies (e.g. latest browser version, Adobe Flash, Java Script, cookies, pop-ups) to make use of the full range of services. D2C digital GmbH shall assume no warranty for any restricted usability that results from the use of older or not commonly used technologies.
6.6 Claims by the Client for damages or a right to withdraw from the contract before the unsuccessful expiry of a reasonably extended period of delivery shall be excluded.
7. Intellectual Property (Copyright, Trademark Rights, Naming Rights, Other Rights)
7.1 The portfolio of video courses which need to be licensed (e.g. language courses, skill trainings, etc.) of D2C digital GmbH is protected by legal provisions on intellectual property (in particular copyright, but also trademark rights, naming rights and other rights). All content shall only be used for personal, non-commercial purposes and only through direct access to the online service. Any illegal reproduction, distribution, public presentation and/or making available to the public as well as any other legal infringement will lead to civil action taken by D2C digital GmbH and, if applicable, criminal prosecution. In particular, any reproduction and/or storage reaching beyond the technical rendering of the online service is inadmissible.
Company-specific content which D2C digital GmbH has digitalised, made interactive and made available as an online course on behalf of the Client is exempt from this provision.
7.2 The company name D2C digital GmbH, the logo and the slogan are protected under name and trademark law. Their use is only allowed with written consent from D2C digital GmbH.
8 Linking to Third-Party Websites
Should D2C digital GmbH be linked to third-party websites or be incorporated in any other way, then D2C digital GmbH has no influence on the content of these websites and shall not be made responsible for such content. Please note that in such cases, the General Terms and Conditions of the relevant website provider may apply.
9 Privacy and Data Protection
10 Client Responsibility for Employee Action
10.1 The Client shall assume responsibility for their employees’ actions related to D2C digital GmbH also in cases for which these General Terms and Conditions do not contain specific provisions. Should a disadvantage arise for D2C digital GmbH as a result of the action of one or several employees of the Client, D2C digital GmbH shall be entitled to claiming compensation from the Client for this disadvantage.
10.2 The Client is responsible for the correct tax-related treatment of the use of the services of D2C digital GmbH by the Client’s employees and indemnifies D2C digital GmbH from any tax liability.
11. Final Provisions
11.1 Amendments to these General Terms and Condition can be made anytime. The Client shall be informed immediately by D2C digital GmbH about such amendments. They are considered to be accepted by the Client should the Client not raise objection within six weeks starting from the notification of the amendments by contacting D2C digital GmbH via email, fax or in writing to D2C digital GmbH Ohmstr. 8a, 86199 Augsburg, Germany; email: firstname.lastname@example.org, Fax: +49 511 220668. In the case of an objection, D2C digital GmbH has the right to terminate the contract with immediate effect.
11.2 Individually negotiated terms as well as any provisions deviating from these General Terms and Conditions agreed upon as part of the contract with the Client take precedence over the General Terms and Conditions.
11.3 Deviating and complementing provisions must be concluded in writing. This also applies to amendments to this clause.
11.4 The law of the Federal Republic of Germany shall apply exclusively with the exception of its rules on the conflict of laws. The UN Convention on Contracts for the International Sale of Goods shall not be applicable. The language used for contracts shall be German. Should a contract contain text in different languages, the German version shall prevail.
11.5 Provided that the Client is a businessperson, a legal entity of public law or a special fund under public law or should he/she/it not have his/her/its usual residence or place of business in the territory of the Federal Republic of German upon commencement of legal proceedings, the competent court of jurisdiction is Augsburg, Germany.
11.6 Should one or several provisions be ineffective, all other provisions shall remain unaffected in case of doubt. If admissible, ineffective provisions shall be replaced by effective provisions that come economically and legally closest to the intended purpose.