1. Scope
These "Terms of Use of the eLearning Platform and Services of comemso electronics GmbH" (hereinafter referred to as "Terms of Use") solely apply to the access to and use of eLearning services (hereinafter referred to as "eLearning Services"), which are developed, provided and maintained by, operated and hosted on an eLearning platform on the Internet (hereinafter referred to as the "eLearning Platform") by comemso electronics GmbH (hereinafter referred to as the "eLearning Service Provider") for any contractual user of this eLearning Platform (hereinafter referred to as the "eLearning User"), whereby the aforementioned eLearning Services Provider and the eLearning User are each referred to as a "Party" and jointly as the "Parties".
2. Prerequisites for the Use of the eLearning Services, Registration and Access to the eLearning Services on the eLearning Platform of the eLearning Services Provider
The eLearning User's access to the eLearning Services located on the eLearning Platform of the eLearning Services Provider is only possible insofar as the following requirements are cumulatively fulfilled at the time of the request for access:
(1) The eLearning User is a direct customer of the eLearning Services Provider or an indirect customer of the eLearning Services Provider through an accredited distributor of the eLearning Service Provider, and
(2) A Non-Disclosure Agreement (NDA) is in effect between the eLearning Services Provider and the eLearning User, which is valid without limitations and whose term has neither expired nor been terminated; in the event of termination of an existing Non-Disclosure Agreement (NDA) – for whatever reason – the eLearning Services Provider is entitled to suspend or terminate the eLearning User's access to the eLearning Services, and
(3) The aforementioned Non-Disclosure Agreement (NDA) includes a provision to the effect that the content available the eLearning User on the eLearning Platform, such as, but not limited to, product training videos, proprietary presentations, etc. may not be shared or uploaded on social media platforms of any kind or on publicly accessible Internet websites without the prior written permission to be explicitly granted by the eLearning Service Provider. In the event that the existing Non-Disclosure Agreement (NDA) does not include such a clause, a new/replacement Non-Disclosure Agreement that includes in addition the referenced restriction must be concluded, mandatorily.
(4) A maintenance contract (paid maintenance agreement) also is in effect between the eLearning User and the eLearning Services Provider for such products or product category whose content the eLearning User would like to access on the eLearning Platform.
(5) Maintenance fees due under the referenced maintenance contract have been paid in full by the eLearning User.
A customer of the eLearning Services Provider who is deemed to meet the aforementioned prerequisites and who intends to access the eLearning Services on the eLearning Platform of the eLearning Services Provider as an eLearning User must submit for this purpose an application in digital format on the form foreseen for the said purpose on the eLearning Service Provider's website. For the completeness and further processing of the application, the present Terms of Use as well as the applicable data protection regulations in accordance with the German Data Protection Regulation (DSVGO) and EU Law must be accepted by means of digital approval. The application must always be related to a project that is to be realized or has already been realized with the customer, the (main) project contact person of the customer shall apply and implicitly the role of a (technical) administrator (hereinafter referred to as "Customer Administrator") for the access as well as assume the responsibility for the use of the eLearning Platform at the customer’s side with regard to the customer’s access as eLearning User to the eLearning Services on the eLearning Platform of the eLearning Service Provider.
Upon submission of the eLearning User's application, the eLearning Services Provider will assess the application with reference to the said 5 prerequisites for use of the eLearning-Platform; in the event that these are deemed to be fulfilled, the eLearning Services Provider will authorize the eLearning User's access starting with the commencement date of the maintenance contract and for its term, this being also related to the product-specific eLearning content covered by the maintenance contract. The initial access credentials will be sent subsequently to the Customer Administrator at his or her personal, clearly identifiable eMail address registered with the eLearning User’s account; mailing lists, so-called "generic" eMail addresses are not supported and cannot be accepted. The registered eMail address of the Customer Administrator will then appear as watermark on all content of the eLearning Services on the eLearning Platform of the eLearning Services Provider that is accessed by the eLearning User via the assigned and password-protected access.
However, if the aforementioned access prerequisites are not fulfilled or not completely fulfilled, the customer administrator will be notified at his registered eMail address of the pending, further mandatory steps and arrangements to be performed on the part of the customer.
3. Agreements for the use of the eLearning Services on the eLearning Platform of the eLearning Services Provider by the eLearning User, Account Management
Following successful completion of the application/registration and activation of the eLearning User's access to the eLearning Services provided by the eLearning Platform of the eLearning Service Provider, the Customer Administrator must change the password initially assigned to him/her when logging in for the first time, in compliance with the specified password instructions, and must also confirm that he/she has read and understood these Terms of Use and that such are solely applicable for the use of the eLearning Platform, its content and materials. The password must be kept in a safe place and must not be made accessible in any way to unauthorized third parties, whether inside or outside customer’s company. Authorised to access the eLearning Services on the eLearning Platform of the eLearning Services Provider as eLearning Users are such employees of the customer, who participate in the realisation of the project in a team with the Customer Administrator or who then use and/or apply the products and services supplied by comemso electronics GmbH as product manufacturer and provider of related services to its products.
In the event that the eLearning User would like to access eLearning services hosted on the eLearning Platform by the eLearning Services Provider prior to the commencement of the term of the related maintenance contract in effect, the eLearning User shall contact the eLearning Services Provider to agree on a different (premature) starting date by mutual consent, provided that the maintenance fees under the maintenance contract have been paid in full.
4. Basic Rules for the Use of the eLearning Platform, Its Content and Materials
The eLearning Services on the eLearning Platform of the eLearning Services Provider are to be understood as a complimentary digital add-on to an existing maintenance contract, available for use by the eLearning User disorderly during the term and in connection therewith, insofar and as long as the 5 aforementioned prerequisites are deemed to be fulfilled.
The eLearning User is thereby provided with an asynchronous (practically available at any time, but depending on availability), flexible but non-interactive access to the content and materials on the eLearning Platform of the eLearning Services Provider for the appropriation of knowledge in connection with the features, use and application of the products and services of the eLearning Services Provider so that the eLearning User, respectively the authorized employees of the eLearning User, may decide themselves when and how they want to access this content and material as learners. However, additional functions such as the chat function, discussion forums, evaluation and comment fields, offline eLearning, quizzes or tests to monitor, query and evaluate the learning progress, etc. are not provided.
By providing the eLearning Services of the eLearning Services Provider on the eLearning Platform, the eLearning User is not granted a licence in the actual sense for the use of these, it is merely an asynchronous, "view only" / "read only" access of the eLearning User in the streaming procedure to video courses or explanatory videos and presentations.
The eLearning Services Provider assumes no liability for the completeness, correctness or usability of the eLearning Services of the eLearning Services Provider hosted by it and located on the eLearning Platform or for their being free from third party rights.
The eLearning User doesn’t have an entitlement to any guaranteed, all-time and uninterrupted availability of the eLearning services hosted by and located on the eLearning Platform of the eLearning Service Provider, as this is a discretionary service on a not additionally chargeable basis provided by the eLearning Service Provider, respectively by comemso electronics GmbH.
In the event that the Customer Administrator registered with the eLearning User's account is no longer employed by the eLearning User or is no longer responsible for the referred interest project with the effect that he/she may no longer exercise his/her rights and duties resulting from the Customer Administrator role, the eLearning User shall, within a reasonable period of time, appoint another Customer Administrator with a personal eMail address at the eLearning User who will take over this role with full rights and duties and shall assume full responsibility for this role upon taking it over. If the eLearning User intentionally or negligently fails to notify in due time the eLearning Services Provider of the change of the Customer Administrator, the eLearning User shall be liable for any breaches or infringements of these Terms of Use; in addition, the eLearning Services Provider may disable the access of the eLearning User to the eLearning Services provided on its eLearning Platform.
5. Copyright, Prohibition of Duplication, Exploitation and Utilization
All contents and materials of eLearning Services available on the eLearning Platform of the eLearning Services Provider and hosted by it, such as, but not limited to: videos, photos, presentations, (instruction) manuals and other documents are subject to the exclusive copyright of comemso electronics GmbH as works designated as "personal-intellectual creations". All of them may not be duplicated and/or used in whole or in part, respectively not be:
• Downloaded by circumventing safety procedures, or
• Recorded using screen recording application or software, or
• Duplicated or reproduced in any way, or
• Uploaded to freely accessible Internet websites, Internet platforms, social media platforms, others, and/or
• Edited, derived, or used in any other way digitally or as a hardcopy for the creation of quasi-equivalent, own eLearning videos and presentations, or including such content and materials in own eLearning videos and presentations, without obtaining the explicit, prior permission of the eLearning Service Provider, respectively of comemso electronics GmbH.
In the event of non-compliance or any infringement of the aforementioned obligations and prohibitions, the eLearning User shall be liable for the damages or prejudices incurred by the eLearning Service Provider
In the aforesaid event, the eLearning Services Provider reserves the right to assert further (legal) rights, claims for damages, as well as reimbursement of expenses, in addition to the aforementioned provisions stated herein.
In addition, in the event of a non-compliance or breach of duties, the eLearning User's access to the eLearning Services available on the eLearning Platform of the eLearning Services Provider and hosted by it may be temporarily or permanently disabled, also, the access authorization to use the eLearning Services may be revoked.
In the event of severe infringements, in particular material infringements against the prohibition of duplication as well as against the prohibition of uploading proprietary contents and materials accessed or made available to the eLearning User on the eLearning Platform of the eLearning Services Provider to other Internet websites or social media platforms that are accessible to third parties and/or freely accessible, but also in the event that the access credentials are disclosed for passed on to unauthorized third parties, claims for damages may be asserted and/or criminal proceedings may be initiated against the eLearning User, in particular in the event of its intent or gross negligence.
6. Liability, Exclusions of Liability, Disclaimers
Unless otherwise explicitly stipulated by these Terms of Use or mandatory statutory provisions to the contrary, claims for damages by the eLearning User for accessing and use of the eLearning Services hosted on the eLearning Platform of/by the eLearning Service Provider, including the content and materials available, are expressly excluded, irrespective of the legal grounds, in particular due to breach of duties arising from contractual obligations and from tort.
The liability of the eLearning Services Provider shall be limited to:
(1) Bodily injury (injury to life, body, or health) caused by a material breach of duty, for which the eLearning Service Provider, its legal representatives, or its vicarious agents are culpably and unequivocally responsible, as well as for other damage caused by an intentional or grossly negligent breach of duty by the eLearning Service Provider, its legal representatives, or its vicarious agents.
(2) Bodily injury (injury to life, body, or health) caused by a material breach of duty, for which the eLearning Service Provider, its legal representatives, or its vicarious agents are culpably responsible in accordance with the provisions of the German Product Liability Act (“Produkthaftungsgesetz”), in the event of intent or gross negligence. However, the claim for damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the use of the eLearning Services, unless any other of the aforesaid cases may apply, accordingly. In such case(s), the eLearning Services Provider shall only be liable, if such damages are typical damages and not consequential damages.
Provided that:
(1) The eLearning User, respectively the Customer Administrator or authorized employees of the eLearning User may be entitled to claim for damages according to this subsection, such claims shall become statute-barred within twelve (12) months from the occurrence of the damage or the eLearning User's knowledge thereof; this shall not apply to cases of intent or gross negligence in the responsibility of the eLearning Services Provider its legal representatives, or its vicarious agents.
(2) The liability of the eLearning Services Provider is excluded or limited, this shall also apply to the liability of its employees, executives, and vicarious agents of the eLearning Service Provider.
The liability of the eLearning Services Provider shall in all cases be limited to the amount of the fees charged in the maintenance contract for the maintenance for the current maintenance term of such products or products category, whose content the eLearning User has access to on the eLearning Platform of the eLearning Services Provider; this limitation of liability shall only apply to entrepreneurs, legal entities under public law and legal entities equivalent thereto.
The burden of proof – onus probandi – always lies with the eLearning User and/or its employees (including the Customer Administrator) with access authorization (including the Customer Administrator) as claimants, insofar as there are no mandatory statutory provisions to the contrary.
The eLearning Services Provider shall conclude and maintain a liability insurance with appropriate cover and sum insured for the use of the eLearning Platform.
7. Force Majeure
In no event shall the eLearning Services Provider be responsible or liable for any failure or delay in performing its obligations under these Terms of Use arising out of or directly or indirectly caused by an event of force majeure and/or consequential events thereof that is beyond its control, including but not limited to natural disasters such as earthquakes, fires, volcanic eruptions and volcanic ash in the atmosphere, floods, storms, also acts of war or hostilities between nations, acts of terrorism, sabotage, governmental measures and actions, embargoes, riots, civil commotion, strikes, lockouts, other serious labour disturbances, breakdown of plant and/or equipment, cyber-attacks resulting in failure of communications systems, obstruction or disruption of electronic data processing and services, shortage of raw materials or power, provided that in one or more such cases, the eLearning Services Provider shall use reasonable and appropriate efforts to resume and continue performance as soon as practicable under the circumstances. The eLearning Services Provider shall notify the eLearning User in writing of the occurrence and effects of the force majeure event it relies on within a reasonable time upon the occurrence of the force majeure event and made suspend its performance to the extent of and limited to the duration of the force majeure event.
8. Data Protection Provisions and Consent
The eLearning User or the Customer Administrator expressly consents to the recording, storage and processing of the data entered and submitted by its application on the registration form and other documents for the use of the eLearning Services available on the eLearning Platform of the eLearning Service Provider hosted by it and made available to be accessed eLearning User, Customer Administrator and/or its authorized employees. The storage and processing of the entered and submitted data are to be understood in accordance with the legal provisions stipulated by Art. 6, (1), lit. b GDPR (EU General Data Protection Regulation) in that such are necessary for the fulfilment of a contract within which the Customer Administrator is acting on behalf of a contractual party, or for the implementation of (pre-)contractual arrangement that are performed at the explicit request of the Customer Administrator.
9. Termination for Cause
The eLearning Service Provider may at its unilateral discretion temporarily or permanently suspend the eLearning User's access to the eLearning Services located on the eLearning Platform of the eLearning Service Provider hosted by it and authorized for the eLearning User’s access for good cause and also discontinue the such access if one of the following infringements has been committed by or happened on the part of the eLearning User:
(1) A breach by the eLearning User, or the Customer Administrator and/or any other employees of the eLearning User, of the obligations set out in Section 5. of these Terms of Use with regard to the observance of copyright, as well as a breach of the prohibition of duplication and exploitation of the content and materials made available to them on the eLearning Platform of the eLearning Service Provider.;
(2) A material breach of the terms of the (co-)applicable Non-Disclosure Agreement (NDA) has been committed by the eLearning User, its affiliates and/or its vicarious agents;
(3) The maintenance contract existing between the eLearning User and the eLearning Services Provider for such products or the product categories to whose contents an eLearning User has access has expired and has not been extended by mutual agreement, and/or any due maintenance fees of the referenced maintenance contract have not been settled (in full) with the effect that the maintenance services of the eLearning Services Provider provided to the eLearning User have been discontinued;
(4) An order has been issued against the eLearning Services User by a court or supervisory authority having jurisdiction to appoint a trustee in bankruptcy or liquidator in the event of insolvency, bankruptcy, debt settlement or similar proceedings, or for the winding up or liquidation of its affairs, and such order has remained in force for more than thirty (30) days.
10. Assignment, Transfer of Rights and Duties
The eLearning User is not entitled to assign or transfer the rights and obligations of the eLearning User acquired through the access granted by the eLearning Service Provider to the content located on the eLearning Platform to third parties without the prior written consent of the eLearning Service Provider. This also applies in the event of company mergers, splits or transformations of any kind due to a change of ownership and/or legal form.
11. Revision of these Terms of Use
The eLearning Services Provider of the eLearning Services may unilaterally revise these Terms of Use from time to time to update its business practices and/or to reflect new or different business practices (e.g., if relevant new features and/or content are included in or added to the eLearning Services on the eLearning Platform), whereas the eLearning Services Provider shall have the right to revise, modify and/or extend these Terms of Use at any time in its sole discretion. If the eLearning Service Provider makes a material adjustment, the eLearning Service User will be notified in a clearly visible manner, e.g., by means of an eMail notification sent to the email address specified and stored in the eLearning Service User's account and/or by posting a notice on the eLearning Platform appearing when the eLearning User will access the eLearning Services upon such material adjustment. Changes will take effect on the day they are published, unless otherwise stated.
The continued use of the eLearning Services following the effective date of the revision, or after the effective date of the Terms of Use in their updated content and wording, shall implicitly mean that the eLearning User of the eLearning Services tacitly accepts these updated Terms of Use. The revised Terms of Use shall, once published, replace in their entirety all previous versions of the old Terms of Use.
12. Severability
If any provision of these Terms of Use is or becomes invalid, void or unenforceable, the validity of the remaining provisions shall not be affected. In lieu of the invalid, void provision, or unenforceable, the Parties shall adopt such provision which comes as close as possible to the purpose intended initially through the invalid/void/unenforceable provision. This shall also apply to the filling of any gaps in these Terms of Use.
13. Place of Performance, Governing Law, Jurisdiction and Venue
The exclusive place of performance for the eLearning Services provided on/through the eLearning Platform is the registered office of the eLearning Services Provider at Karlsbader Str. 13, 73760 Ostfildern, Germany.
These Terms of Use shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, without giving effect to any choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG), adopted in Vienna, Austria, on April 10th, 1980, shall not have any application hereto.
The place of jurisdiction for all disputes arising from the contractual relationship between the eLearning Services Provider and the eLearning User is the competent court in Germany having jurisdiction for the registered office of the eLearning Services Provider. However, the eLearning Services Provider may be entitled to assert claims before the competent court in Germany that has jurisdiction for the registered office or branch of the eLearning Services User.
If, in deviation from the aforementioned provision, an applicable law other than German law or a different place of jurisdiction than the court in Germany responsible for the registered office of the eLearning Services Provider has been agreed in a non-disclosure agreement, sales or purchase agreement or any other related contract or agreement that is still valid between the Parties, such contract(s) or agreement(s) shall not apply in any way to these Terms of Use of the eLearning Services available on the eLearning Platform of the eLearning Service Provider hosted by it and made available to be accessed eLearning User.
14. Order of Precedence of Documents and Included Provisions
The following order of precedence shall apply to all contractual provisions within the scope of these Terms of Use between the eLearning Service Provider and the eLearning User with regard to the eLearning Services available on the eLearning Platform of the eLearning Service Provider hosted by it:
#1 Individual, mutual written agreements with direct reference to the use of the eLearning Platform and the eLearning Services offered here, then
#2 The present Terms of Use, then
#3 The General Terms and Conditions (GTC) of comemso electronics GmbH in their current version, link: https://www.comemso.com/comemso_electronics_GTC.pdf.
END of the Terms of Use.