General Terms and Conditions of Business (GTCB) for the Order and Use of Digital Services Provides by the Company PhACT GmbH
§ 1. Validity of the GTCB
(1) These General Terms and Conditions of Business are valid for ordering and use of digital services of Phact GmbH. (2) These GTCB are not valid for consulting and provision of additional services of Phact. For provision of consulting services the General Terms and Conditions of Business for Consulting and Provision of additional Services of Phact GmbH apply. (3) The offers of PhACT GmbH (Offeror) are only addressed to Enterprises as Clients (Business to Business, B2B). The scope of these GTCB is limited to business with Enterprises. An enterprise is a natural person or a legal entity or a legally responsible joint partnership, that acts in pursuance of its business operations or professional activities whilst concluding a transaction. (4) The Offeror is prepared to conclude a contract only on the basis of these General Terms and Conditions of Business for Ordering and Use of Digital Services. General Terms and Conditions of Business of the client that differ from these would not be recognised unless the Offeror has expressly consented to them. General Terms and Conditions of Business of the client that differ are also not valid even when the Offeror has knowledge of them while rendering his services..
§ 2. Offers and Conclusion of Contract
The Offers of the Offeror are subject to change. The Offer of the Offeror does not represent a binding proposal; rather it is an invitation to the Client to accept a proposal. This means that the actual Offer becomes binding only when an order is placed. The Client shall remain bound until such time as a reply may be expected (the contract shall be deemed to have been concluded between absentees). The Offeror must accept this Offer for a Contract to come into existence. This acceptance can be explicit or implied. A Contract (Licence Agreement) with the Offeror thus only comes into existence, when he confirms the order of the Client by email or by providing the Digital Services of the Offeror within three days after the order is placed.
§ 3. Provision and Use of the Digital Services
(1) All E – learning Courses (hereinafter “Courses”) and electronic files (hereinafter “PhACT Sheets”) that can be downloaded which are offered in the Online Shop of the Offeror and are provided for use of the authorised Clients shall be deemed to be “Digital Services”. These Digital Services can be accessed only online through an internet connection. (2) A Learning Management System (LMS) hosted by the Offeror is used as a “Learning Platform”. An LMS is a software product that can be accessed through the internet and is used for providing and managing the learning contents, administration of the participants and organisation of learning processes. (3) After successful payment, the Client obtains the access data – consisting of Uniform Resource Locator (URL) to the Learning Platform – user name and password – by email, and thereby is able to use of the Digital Services provided (“Provision”). (4) The use of the Digital Services is only permissible in accordance with these General Terms and Conditions of Business for Ordering and Use of Digital Services.
§ 5. Scope of Services
(1) The contents of the Digital Services accessible to the Client are specified in the Specification of Services presented in the Online Shop of the Offeror. (2) In principle, the Digital Services are available for use seven days a week and 24 hours each day for the usage period defined in the Specification of Services. The availability can be restricted due to technical reasons. In this case, the Offeror does not undertake any liability for a temporary non-availability of the Digital Services in accordance with § 9.1. (3) Statements and elucidations regarding the Courses in advertising materials as well as on the website and in the Online Shop of the Offeror are to be considered exclusively as description of the nature and composition and not as a guarantee or warranty of a feature.
§ 6. Right to Use / Period of Use / Term of Contract / Termination
(1) Within the scope of the Usage Contract, the Client acquires time-limited, simple, non-transferable Right to Use exclusively for his own purpose. (2) The Right to Use during the Term of the Contract includes the access to the Learning Platform as well as the entitlement to retrieve courses (online) for the purpose of one’s own learning or for downloading PhACT Sheets. The use of the Digital Services is limited to the respective Client. The retrieved or downloaded contents are permitted to be used only for one’s own purpose during the Period of Use. (3) The granting of the Rights to Use by the Offeror is subject to the precedent condition of complete payment by the Client. (4) No exploitation rights shall be granted to the Client. In particular, he is not permitted to publish, pass on or make accessible the online products bought by him either wholly or in part, either in printed, digital, or in other form to third parties. The right of duplication is limited to acts of copying solely for one’s own personal use. (5) The Offeror is entitled to use technical measures through which usage beyond the extent contractually permitted is impeded, especially to install appropriate access blocks. (6) The Client is not entitled to install or use devices, programs or other means that serve to bypass or surmount the technical measures deployed by the Offeror. In case of violation by the Contractual Partner, the Offeror is entitled to immediately block access to the Learning Platform and the Digital Services and to terminate the contract extraordinarily without notice. Other rights and claims of the Offeror, especially the right to compensation for damages, shall remain affected.
§ 7. Rights of the Offeror
(1) Insofar as it is not otherwise marked, all Digital Services provided by the Offeror shall remain the intellectual property of the Offeror and protected by copyright. (2) All rights that are based on this, especially that of reproduction, of translation, the dissemination by photo-mechanical or similar means, the storage and processing with the help of EDP or dissemination in computer networks – also partially – are reserved by the Offeror or the creators or the licence owners. (3) The Client is not entitled to remove or change company logos, copyright notices, trademarks or other marks or proprietary notices, serial numbers and other identification elements or individual elements of features serving this purpose, of the Offeror or provider of the Right to Use. (4) The Offeror is entitled to personalise the digital contents provided for download individually with visible and invisible labelling, in order to enable investigation and legal prosecution of the original purchaser or Client in case of improper use.
§ 8. Price / Price Adjustment / Payment Terms
(1) The price payable by the Client for the Use of Digital Services for the Periods of Use stated is specified in the Specification of Services available in the Online Shop of the Offeror. (2) The price for the Use of the Digital Services is to be paid in advance in each case. (3) The payment for the Digital Services when ordering in the Online Shop can be made using one of the following payment options:
Advance transfer to one of the bank accounts stated by the Offeror
Payment Service Paypal
(4) The current prices stated in the Online Shop shall be applicable. (5) The prices stated in the Online Shop are net prices. In addition, the Client must pay the statutorily prescribed Value Added Tax (VAT).
§ 9. Liability
(1) The Client uses the Digital Services provided at his own risk. The Offeror does not assume any liability especially for the case that the Digital Services are not available due to technical disruption – for example due to interruption in the internet services or due to maintenance activities. (2) The Offeror does not assume any liability in respect of the suitability of the Courses for the aims of the Client. (3) If from the website of the Offeror, one is directed to the websites of third parties or if links to these websites are provided on the website of the Offeror, no responsibility or liability can be assumed for the correctness and completeness of the contents of the data security of these websites. Since the Offeror has no influence on the compliance with data protection laws by third parties, the Client should separately examine the data privacy statement offered in each case. (4) Defects, disturbances or damages should be brought to the notice of the Offeror in writing without delay. (5) The liability of the Offeror for minor negligence is excluded; furthermore, liability is excluded in so far as it is allowed by law. In particular, liability for indirect damages is hereby excluded.
§ 10. Ending of Contracts / Termination / Deletion of Customer Data on Instruction of the Customer
(1) The use of the Digital Services is limited to a fixed period according to § 5(2). (2) The Contract ends automatically upon expiration of the term. Termination with a proper notice of termination in advance is not possible. (3) The rights of each Party for extraordinary termination for compelling good reasons remain unaffected. (4) Every termination in the case of extraordinary termination for compelling reasons must take place in writing, stating the reasons for termination. (5) The Offeror is entitled to block the access of the Client immediately at the end of the contract. (6) In case of termination of courses, no payments would be refunded. (7) lf personal data (e.g. logging of learning success) is deleted with the Customer’s consent in accordance with § 11 Paragraph (7) and, as a result, the full functionality of the learning platform is no longer available, there is no claim to repayment or partial repayment of fees.
§ 11. Data Protection
(1) During the initiation of, conclusion of, processing and reverse transaction processing of a User Contract, data is compiled, stored and processed within the scope of legal provisions. (2) If personal data about employees or business partners of the Client is exchanged between the Client and the Offeror, the Client shall obtain any consents required from his respective employees or business partners for the data processing. (3) The Client agrees that necessary personal data of his contact person will be processed for the development of the business relationship. (4) For further notes on data protection, please see our privacy statement.
§ 12. Choice of Law / Jurisdiction / Final Clauses
(1) Swiss Law is exclusively applicable to the Contracts between the Client and the Offeror; the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG, “UN Sale of Goods Law”) shall be excluded. (2) The place of jurisdiction is Duggingen (Canton Basel-Landschaft), Switzerland. The Offeror is also entitled to sue the Client at the Client’s general place of jurisdiction. (3) Should one or more stipulations of these GTCBs be or become ineffective, the efficacy of the other stipulations for the rest shall not be affected thereby.Phact GmbH, Christoph Merian-Ring 11, 4153 Reinach BL / Switzerland