Cloud services conditions for customers

(1) Scope of these Cloud Services Terms and Conditions

The following Cloud Services Terms and Conditions (hereinafter also referred to as “Cloud Services Terms and Conditions”) apply to the use of the Cloud Services of talent::digital GmbH by the customer on the basis of a contract concluded with the customer in this respect.

The application of other general terms and conditions of business or other terms and conditions of both parties not expressly mentioned or referred to is excluded. This shall also apply if one party does not or not expressly object to the applicability of such terms and conditions in individual cases.

Definitions

“Cloud Services” The talent::digital Cloud Services consist of the services that talent::digital offers through its websites and applications (including any optional applications and apps, as a Cloud Service and which are accessible in supported web browsers or supported mobile devices.

“Customer” The natural or legal person who has entered into a contract for the use of the Cloud Services with talent::digital.

“End User” A natural person to whom the Customer provides access to the Service.

“Platform” the part of the talent::digital website reserved for the Customer and/or the End Users.

“Customer Content” all content uploaded to the Platform by the Customer or its End Users.

“Support” technical answers and advice from talent::Digital in relation to the use of the Cloud Services.

2. type and scope of the cloud services; rights of use; change by talent::digital; customer’s special right of termination

2.1 The type and scope of the Cloud Services available to the customer as well as their availability result from the contractual agreements. The essential service component of the Cloud Services is access to and use of the platform and the services offered there for the analysis and promotion of digital competences of the end users. The right to use the cloud services is limited to the agreed scope. With the provision of access to the Cloud Services the delivery obligations of talent::digital are fulfilled.

2.2 Through the successful registration and/or acquisition of access to the Cloud Services the customer receives the simple, spatially unrestricted and non-transferable right to use the Cloud Services in accordance with their purpose during the term of the contract. Any further use requires the express written consent of talent::digital. This applies in particular to the duplication, distribution, processing or sublicensing of the cloud services.

2.3 The use of the cloud services is limited to the number of authorised users specified in the usage agreement. The end users shall be named by the customer. talent::digital shall confirm the access authorisation of the relevant authorised end users by email or in writing. talent::digital shall be entitled to take technical measures to prevent use beyond the permitted scope, in particular to install appropriate access barriers.

2.4 With the exception of the rights described in Clauses 3.2 and 3.3, the Customer does not acquire any rights from talent::digital, its affiliates or their licensors in the Cloud Services, or in any related intellectual property rights, under this Agreement.

2.5 talent::digital endeavours to continuously adapt the cloud services to the state of the art and to continuously develop the services further. Moreover, since the services offered on the platform are essentially made available to all customers in a uniform manner, the cloud services agreed with the customer are also subject to a unilateral right of change by talent::digital if such change is necessary for the correction of errors, for updating and completion, for technical programme optimisation or for licensing reasons. If such a change leads to a not merely insignificant devaluation of the services to which the customer is entitled, the customer may either demand a reduction of the remuneration in accordance with the devaluation or terminate the usage agreement without observing a period of notice. The right of termination may be exercised within a period of eight weeks from the occurrence of the change.

2.6 Insofar as talent::digital also provides the cloud services or parts thereof free of charge in addition to offers subject to a charge, this shall always be subject to unannounced changes and/or discontinuation at any time or the provision in future only possible against separate payment. Furthermore, talent::digital assumes no responsibility for any cloud services offered free of charge with regard to their completeness and/or correctness, unless talent::digital is responsible for the error intentionally or through gross negligence or fraudulently concealed the error.

2.7 talent::digital always endeavours to ensure the highest possible availability of the cloud services. Nevertheless, it may be necessary to temporarily suspend the availability of the cloud services for maintenance purposes. talent::digital shall, if possible, inform the customer in good time in advance of maintenance time windows and arrange them in such a way that the impairments are kept to a minimum. Details result from the agreed service levels.

3. responsibility of the customer / further obligations of the customer

3.1 For access to the Cloud Services, the Customer shall receive the necessary access data, usually a user ID and a changeable password. Alternatively, access is provided by a link sent by e-mail. The customer is obliged to change the password at regular intervals, but at least once a year. The customer may only pass on the password to persons who have been authorised by him to access the Cloud Services. 

3.2 The customer is obliged to keep the access data secret from unauthorised persons. In particular, the access data shall be stored in such a way that access by unauthorised persons is impossible in order to exclude misuse of the access. The customer shall inform talent::digital without delay as soon as he becomes aware that unauthorised persons are aware of the access data. In this case talent::digital is entitled to reassign not only the password but also the user ID. All keys and access data which the customer receives from talent::digital or generates in the course of using the cloud services are exclusively for the customer’s internal use and may not be sold, transferred or sublicensed to third parties, with the exception that the customer may disclose them to its employees, agents, subcontractors or affiliated companies acting as agents or subcontractors of the customer and working on behalf of the customer, provided this is necessary for the proper administration of the cloud services. The Customer shall be responsible for all activities of such third parties.

3.3 The Customer undertakes not to upload to and/or store on the Platform any Customer Content that is unlawful, in breach of laws, regulatory requirements or third party rights.

3.4 The customer is responsible for ensuring that its end users to whom it provides access to the Cloud Services use the Cloud Services in accordance with the contract. In particular, the customer is obliged to ensure that the accounts provided within the framework of the Cloud Services are assigned to an individual person. In doing so, it is not permitted to use these accounts

• to share between several people,
• Assign business functions,
• to make publicly available or
• resell them commercially to third parties or allow such third parties to use them.
  
  

3.5 Furthermore, it is not permitted to interfere with the Cloud Services or to circumvent protective or security mechanisms of the Service. In particular, it is not permitted to,

• subject the cloud services to penetration tests, vulnerability tests or denial-of-service attacks,
• conduct performance tests of any kind; or
• Perform reverse engineering.
  
  

4. data protection and admissibility under labour law

4.1 The customer shall check on its own responsibility whether the use of personal data by it within the scope of the use of the Cloud Services satisfies data protection requirements. It is also the customer’s responsibility to check whether the use of the cloud services as well as the planned use of the knowledge gained is permissible under labour law.

4.2 In particular, the customer must obtain the consent of the end users and the works council before using the cloud services, where necessary. This shall also include consent to the processing of personal data if such consent is required under data protection law.

4.3 If talent::digital processes personal data as a processor of the Customer within the scope of the Services, the order processing agreement concluded between the Parties shall apply.

5. remuneration

5.1 The customer is obliged to pay the invoice amounts resulting from the prices agreed with the customer for this purpose. All fees are subject to the applicable statutory value added tax.

5.2 If the parties have agreed services in connection with the setup and configuration of the Cloud Services, these shall be remunerated as a one-off amount after provision of the service, unless otherwise agreed.

5.3 Unless otherwise agreed, a monthly service fee shall be paid in advance for access to the platform and for the use of the services offered there as well as the support and help desk provided there. This service fee is payable as a lump sum and irrespective of the actual use of the platform and/or the content and support offered there.

5.4 In addition, a monthly fee shall be paid for each end user created on the platform. This includes the use of the standard services offered on the platform (in particular the competence tests and qualification profiles (talent::now and talent::profile). In the price tables from 01.02.2021 the services for set-up (5.2) and service fee (5.3) are included in the monthly fee for end users.

5.5 The Parties may agree on further services. Unless otherwise agreed, these shall be invoiced at the agreed prices after the service has been provided and shall be remunerated accordingly by the Customer.

5.6 The amounts stated in the invoice are due for payment without deduction ten (10) days after receipt of the invoice. talent::digital will issue the invoice to the Customer in text form (usually as an e-mail attachment). The customer hereby agrees to this. The customer shall ensure that the proper receipt of the invoices is guaranteed.

6. client contents / rights and obligations / exemption

6.1 The customer has the possibility to upload his own media such as videos, articles, forum entries to the platform. The customer grants talent::digital those copyright reproduction rights and other rights to all customer content which are necessary for the performance of the contract. In particular, the customer grants talent::digital the right to make customer content available in accounts of the customer within the framework of the contractual provision of the cloud services. The customer does not grant any further rights to the customer content. The customer has the option to delete the customer content at any time.

6.2 The customer is solely responsible for all Customer Content as well as the content created by him in the context of the use of the Cloud Services and is obliged to back up this content regularly. The customer shall ensure that the content does not infringe the rights of third parties. In particular, the customer is responsible for ensuring that its content complies with third-party property rights (including competition, labelling, name and copyright law) and with applicable laws. Furthermore, the customer undertakes not to post any contents that

• contain illegal or immoral material, in particular information which incites hatred, incites to commit criminal offences or glorifies or trivialises violence, is pornographic or sexually offensive and is likely to seriously endanger the morals of children or young persons, contains pornographic or obscene material, or
• are likely to deny, insult, threaten, defame or violate the personal rights of others.
• are intentionally defective, contain malware or are otherwise misleading.
  
  

6.3 Notification mails may be generated during the administration of the service. It is not permitted to provide these mails with unwanted content.

6.4 talent::digital and its vicarious agents shall be fully indemnified against all claims of third parties and any costs which are based on a use of the Cloud Services by the customer in breach of the law and/or the contract or which are made with the customer’s approval or which arise in particular from data protection law, copyright law or other legal disputes connected with the use of the Cloud Services by the customer. If the customer recognises or must recognise that such a breach is imminent, there is an obligation to inform talent::digital immediately.

7. third party rights / exemption / special termination

7.1 talent::digital shall indemnify the customer at its own expense against all claims of third parties based on infringement or unlawful use of intellectual property rights of such third party through the cloud services. This shall not apply insofar as such claim is based on a culpable breach of duty by the customer towards talent::digital under this contract. The customer shall inform talent::digital without delay of any claims asserted by third parties. If he does not inform talent::digital immediately of the claims asserted, this claim for indemnification shall expire.

7.2 In the event of a claim for indemnification on the basis of infringements of property rights within the meaning of Clause 8.1, talent::digital may at its own discretion and at its own expense with regard to the affected performance

• after prior consultation with the customer, make changes which, while safeguarding the interests of the customer, ensure that an infringement of property rights no longer exists, or
• acquire the necessary rights of use for the customer.
  
  

7.3 If the measures set out under (a) and (b) above cannot be implemented or can only be implemented with disproportionate effort, talent::digital may terminate the affected part of the contract extraordinarily and without observing a notice period. Insofar as the remaining part of the contractual services is no longer reasonable for the customer, the customer may for his part terminate the contract extraordinarily and with immediate effect within two weeks after receipt of the termination notice from talent::digital.

8 Term and termination

8.1 Insofar as the parties have not agreed a minimum contract term, the contract shall be concluded for an indefinite period and may in this case be terminated by either party with due observance of a notice period of 3 months.

8.2 In the event of an agreed minimum contract term, the contract may be terminated by either party at the end of the minimum contract term subject to a notice period of 3 months to the end of the minimum contract term. Otherwise, it shall be extended by 1 year in each case if it is not terminated with a notice period of 3 months to the end of the respective extension period.

8.3 The right of each party to terminate the contract without notice for good cause remains unaffected. talent::digital shall in particular be entitled to terminate without notice if the customer fails to make due payments despite a reminder and a grace period or if the customer breaches the contractual provisions on the use of the cloud services. Termination without notice requires that the other party is warned in writing and requested to remedy the reasons for termination to the satisfaction of the other party, unless a deadline for remedy pursuant to Section 314 BGB in conjunction with Section 323 BGB is dispensable.

9. deficiencies of the services

9.1 talent::digital shall remedy technical defects of the cloud services within a reasonable period of time. The responsibility of talent::digital in this respect extends only up to the transfer point of the platform to the Internet, but not to the systems of the customer and data transmission lines beyond the transfer point.

9.2 talent::digital shall provide the other services in accordance with the criteria agreed for this and otherwise within the scope of due care customary in the trade. Insofar as evaluations are prepared by talent::digital within the framework of the cloud services, a specific evaluation result is not owed.

10. limitation of liability

10.1 talent::digital shall be liable, irrespective of the legal grounds, within the framework of the statutory provisions only in accordance with paragraphs 11.1 to 11.6.

10.2 In accordance with the statutory provisions talent::digital is liable without limitation for damages arising from injury to life, body or health which are based on an intentional or negligent breach of duty as well as for other damages which are based on an intentional or grossly negligent breach of duty as well as fraudulent intent. Furthermore, talent::digital shall be liable without limitation for damages covered by liability under mandatory statutory provisions, such as the Product Liability Act, as well as in the event of the assumption of guarantees.

10.3 talent::digital is liable for such damages which are not covered by the above paragraph and which are caused by simple or slight negligence, insofar as this negligence relates to the breach of contractual obligations, the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which you may regularly rely (so-called cardinal obligations). In this respect, talent::digital’s liability shall be limited to the foreseeable damage typical for the contract.

10.4 The strict liability of talent::digital for defects already existing at the time of the conclusion of the contract in accordance with § 536a para. 1 half-sentence 1 BGB is excluded.

10.5 talent::digital shall not be liable for the loss of data insofar as the damage is due to the fact that the customer has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

10.6 The above provisions shall also apply in favour of the employees, representatives and vicarious agents of talent::digital.

11. naming as reference customer

11.1 The Client agrees that talent::digital may use the Client’s name and/or logo in a client list as a so-called reference client. This customer list may be used online or in marketing materials.

11.2 The customer may revoke its consent to being named as a reference customer at any time with effect for the future.

12. service-Level

12.1 Availability of the Platform; Service Credits

12.1.1 The availability of the Platform is 99% during business hours on weekdays 8 am to 6 pm except on public holidays in NRW, measured in 5-minute intervals per calendar month, excluding planned maintenance.

12.1.2 Downtime (planned and unplanned) will be published in the “Announcements” section of the Support Website with an estimated downtime frame in each case.

12.1.3 In the event of a shortfall in availability for a Customer, the Customer may request a so-called “Service Credit” from Support. The service credit enables a free extension of the service by one month per reported month with service level underrun.

12.2 Technical support services

12.2.1 Technical Support Services (hereinafter referred to as “Support”) are technical answers and advice relating to the use of the Cloud Services. Support is provided by a Technical Support Representative via the support area of the Platform, by email or by telephone (at the discretion of the Support Representative). The Customer may be required to take action under the guidance of the Support Employee.

12.2.2 Support does not include consultancy, project management, software development, and training, or troubleshooting of End User Equipment (e.g. PC and network problems). Requests beyond the scope of the support definition may be referred to other departments of the Service Provider and would be subject to a separate agreement, including possible additional charges. No additional fees will be charged without notification and agreement of the Client.

12.2.3 Support may not be transferred or sold; Support must be provided by the Service Provider to the Customer who has purchased the Support Service.

12.3 Reaction and processing

12.3.1 Resolving a support request is done through one of the following options:

1. Achieving the goals or remedying the symptoms described in the initial contact,
2. Mutual agreement that 1. cannot be reached by support due to code restrictions, function restrictions or other reasons; or
3. No response from the customer to a communication from support within five calendar days.
   
   

12.3.2 The Support Personnel will use reasonable efforts to provide the Services requested and to communicate the reasons for any workarounds and/or limitations.

12.3.3 The Customer acknowledges that

• The engineer’s ability to provide support depends on the completeness and accuracy of the information provided by the customer,
• Certain requests may not be supported, whether due to software limitations or other reasons,
• Support recommends workarounds where possible, but cannot guarantee a solution for every request,
• The engineer usually needs access to the client’s data to carry out the support.
  
  

12.4 Response time, support times and language

Support will be provided during talent::digital’s business hours, Monday to Friday from 9am to 5pm CET, excluding public holidays (based on talent::digital’s place of business). All support incidents submitted via the service provider’s support website will have a first response time (see support level below). The first response time means that the service provider will start processing the incident within the described time period and will try to close it as soon as possible. Support is only offered in German or English.

12.5 Support level

12.5.1 The following initial response times are offered:

• Critical incidents: Four business hours.
• Major incidents: Two working days.
• Minor incidents: Two working days.
  
  

12.5.2 “Critical incidents” are incidents that severely affect the customer’s service performance on a production system and require immediate corrective action. Examples:

• Total failure of the platform and therefore no possibility of using the cloud services without prior notice of maintenance work.
• Significant data loss.
• Security issue with a CVSS V3 rating of 8.0 or higher.
  
  

12.5.3 “Major Incidents” are incidents that also severely impact Cloud services, but with less urgency than Critical Incidents because they have less immediate impact on system performance, the Customer and the Customer’s operations. Examples:

• Recurring significant software errors.
• Repeated short service failures or longer failures of partial services.
• Significant reduction in service performance.
• Partial data loss.
  
  

12.5.4 “Minor incidents” are incidents that do not fall into the above categories of “critical” or “important”. Minor incidents do not significantly affect system performance. Such problems are tolerable during system operation. Examples:

• Non-critical error in a software component.
• Temporary power reduction.
  
  

13. System requirements

The following current system requirements apply to the use of the cloud services and can be found at: https://talentdigital.freshdesk.com/a/solutions/articles/47000341299

13.2 Deletion of data

13.3 Technical log information is regularly deleted automatically when it is no longer relevant for support, troubleshooting or legal measures.

13.4 talent::digital is entitled to delete all customer content and data generated in the context of the use of the cloud services after the end of the contract; any further legal retention obligations with regard to individual data remain unaffected.

14. Changes to these conditions

Without prejudice to the possibilities of unilaterally changing the Cloud Services and the provisions applicable thereto as regulated in Sections 3.5 and 3.6, the customer shall be notified of changes to these General Terms and Conditions in writing or by e-mail. If the customer does not object to these amendments within four weeks after receipt of the notification, these amendments shall be deemed approved. talent::digital will inform the customer of this again within the scope of the amendment.

15. Applicable law and agreed place of jurisdiction

15.1 The contract and the use of the cloud services shall be governed exclusively by German law to the exclusion of the provisions on private international law and the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).

15.2 The place of jurisdiction for all disputes arising from or in connection with this contract is Düsseldorf. talent::digital is also entitled to sue the customer at the customer’s general place of business.