BUSINESS-TO-BUSINESS GENERAL TERMS AND CONDITIONS
FOR THE E-LEARNING PLATFORM “VAMED Education and Training”
as of March 2021INTRODUCTION
1.1 The present business-to-business general terms and conditions (hereinafter “GTC”) govern your contractual relationship with VAMED Management und Service GmbH, Sterngasse 5, 1230 Vienna, Austria (hereinafter “Provider”), with regard to the e-learning platform “VAMED Education and Training” (hereinafter “Platform”) operated by the Provider and your use of the Platform.
1.2 Your general terms and conditions and your other contractual terms (jointly hereinafter “Your Terms”) are explicitly and fully excluded. This equally applies in case (i) you have informed the Provider about Your Terms, (ii) you have provided the Provider with Your Terms in whatever manner, (iii) the Provider concluded and/or performed any contract with you of whatever nature in knowledge of Your Terms or (iv) Your Terms are mentioned or otherwise referred to in any of your order acknowledgements, delivery notes, invoices or other communications and the Provider did not object thereto.
1.3 The Provider may change and/or amend the GTC at any time and such changes and/or amended GTC then govern future contracts entered between you and the Provider with regard to the Platform and your use thereof, and such changed and/or amended GTC equally govern your then-current contractual relationship entered between you and the Provider with regard to the Platform and your use thereof if you consent thereto, e.g. by clicking on a corresponding consent presented to you on the Platform and therefore respectively declaring your acceptance. If you enter into additional contracts with the Provider with regard to the Platform and your use thereof, then the current GTC shall apply to each and any such additional contracts.
2. DEFINITIONS
2.1 „Your Content”: any and all contents, including any kind of information whatsoever, that you or one of your users inputs into and/or uploads onto the Platform (such as reviews, comments, chat messages etc.) to the extent the Content does neither originate from nor is predetermined by the Provider.
2.2 „Contract“: the individual contract entered between you and the Provider regarding your and/or your users access to the Platform, particularly to the E-Learning Content.
2.3 “Control Panel”: the entirety of all input- and output masks within the Platform, (i) where you particularly may enter and keep up to date your contact details, (ii) that may serve the purpose of communication between you, your users and the Provider (iii) via which you can administer the E-Learning Content (see below definition) and/or (iv) via which the Provider performs the E-Learning Content vis-à-vis you and/or your users.
2.4 „Credit Note“: a credit note issued by the Provider in cases where the Provider was unable to perform the E-Learning Content in compliance with the contract, particularly in cases where your access to E-Learning Content is prevented by whatever reason. A Credit Note is only issued if the Provider received a corresponding fee for the provision of any affected E-Learning Content. Hence, no Credit Note is issued for any E-Learning Content that is accessible via the Platform free of charge.
2.5 „E-Learning Content“: each and all services, particularly e-learning modules, e-learning courses, certificates and similar content, that the Provider provides to you and/or your users through the Platform under the contract.
2.6 “Login Credentials”: the entirety of usernames and passwords and every single username and/or password that are/is required for obtaining access to the E-Learning Content and that, depending on technical availability (e.g., a username may only be assigned once), may be freely chosen and changed by the Provider and/or you and/or your users.
2.7 „(in) writing“, respectively „(in) written form“: simple text form, including simple emails that are not signed by qualified digital signature, whereas, in cases of hardcopy communication, the recipient’s actual receipt is decisive, and in cases of electronic communication, the recipient’s mere technical possibility to retrieve the electronic communication (but not the actual receipt/retrieval) is decisive.
3. Registration and Login Credentials
3.1 Before you and your users may access the E-Learning Content and use the Control Panel, you and/or your users must register with the Platform. The registration process particularly comprises (i) the gathering of your required data, such as your contact and billing data, and (ii) your consent to the GTC, which you may save and print out locally.
3.2 During the registration process, you and/or your users may either (partially) choose the Login Credentials during the registration process (such as the password in particular) or you and/your users will (partially) receive the Login Credentials from the Provider (e.g. via email sent to the email address that you and/or your users specified during the registration process). In case of the latter, you and/or your users may change the Login Credentials via the Control Panel and you and/or your users should do so for ensuring that the Login Credentials are only known to you and/or your users.
3.3 The Login Credentials may only be used in compliance with the Contract and the GTC as well as for the purposes of accessing the E-Learning Content and the Platform. You and/or your users may only pass on any Login Credentials to other co-workers employed by you. You may not pass on or otherwise disclose the Login Credentials to any other third party (including any direct or indirect subsidiary and other direct or indirect group company). Any passing on or other disclosure of the Login Credentials is at your own risk, even in cases where you and/your users are entitled to pass on or otherwise disclose the Login Credentials.
3.4 You and your users shall choose and store the Login Credentials in a secure manner, e.g. by choosing a secure (so-called “strong”) password and by regularly changing the password whilst observing the same principles of password security. Moreover users passwords will be checked against the password policy as specified in the settings of the Platform, e.g (Length(8), Digits(1), Lowercase letter(1), Uppercase letter(1), Non-alphanumeric characters(1)) those values are minimum requirement for the user password.
3.5 If required in the Provider’s reasonable discretion, particularly from an IT-security, Login Credential abuse or fraud-prevention point of view, the Provider is entitled to unilaterally change any Login Credential without any prior notice. In such cases, the Provider will provide you and/or your concerned user(s) with new Login Credentials via email. In cases where there is no imminent danger, the Provider will make any such change(s) in a manner that keeps any corresponding interruption of your and/or your concerned user(s)’s access to the Platform and to the E-Learning Content to a minimum to the extent such interruption is caused by your and/your user(s)’s corresponding lack of valid Login Credentials.
3.5 You and your Users shall keep the Login Credentials strictly confidential. In case you and/or your user(s) suspect that any Login Credential possibly became known to a third party, you must notify the Provider accordingly in writing without undue delay together with a reasonably detailed specification and/or description of the possibly concerned Login Credential(s).
3.6 Irrespective of any negligence or fault, you are responsible and liable for any abuse of Login Credentials. This particularly applies to your liability for any fees payable to the Provider for any unauthorized access to E-Learning Content occurring through any abuse of Login Credentials that were assigned to you and/or your users. In case of such abuse of Login Credentials, the Provider may forthwith terminate the Contract for cause or block your and/your users’ access to the Platform and the E-Learning Content. The Provider will strive to only block your and/or your users’ access to the Platform and/or the E-Learning Content after the Provider has requested you to cease any abuse and the Provider will also strive to inform you about the above possible consequences of non-compliance within such request.
3.7 You shall always keep your contact and billing data accurate and up to date, particularly for enabling the Provider to communicate with you with regard to the Platform and the E-Learning Content.
4. Changes to the Platform and the E-Learning Content
4.1 At any time, the Provider is entitled to change, amend and otherwise alter the Platform, the Platform’s functionalities and the E-Learning Content with a view to technological developments. You accept and agree that the Provider may make such changes at any time in the Provider’s sole discretion to the extent that the Platform’s core functionalities remain untouched, which particularly applies when updates or upgrades to the Platform’s underlying software are applied. The Provider will strive to inform you about any such changes, amendments and other alterations in advance.
4.2 Furthermore, you accept and agree that the Provider also may make substantial changes, amendments and/or other alterations to the Platform’s core functionalities and/or the E-Learning Content, whereas the Provider will inform you about such substantial changes, amendments and/or other alterations at least 14 days in advance before such substantial changes, amendments and/or other alterations are applied. To the extent such substantial changes amendments and/or other alterations are unreasonable/unacceptable for you from an objective point of view, you are entitled to forthwith terminate the contract for cause, whereas your corresponding termination becomes effective in the point in time when such substantial changes, amendments and/or other alterations are actually go live. All of your claims (including claims for any refund whatsoever) possibly resulting from your corresponding termination are hereby fully excluded to the maximum extent permissible by applicable law.
5. Provider’s License Grant to You
5.1 For the duration of the Contract, the Provider hereby grants you and your users a non-exclusive, worldwide, non-transferable and non-sublicensable license to access the Platform and the E-Learning Content for the purposes of watching the E-Learning Content via the Internet.
5.2 Without the Provider’s prior written consent, you and your users may not copy, download, distribute, disseminate, sell, rent-out, let-out, reverse-engineer, disassemble, change, amend, otherwise alter, broadcast (via wired or wireless networks of any kind), make available to third parties, translate, publicly display and/or otherwise exploit the Platform and the E-Learning Content.
5.3 You and your users may not change, amend, otherwise alter, efface, remove, any trademarks (whether registered or unregistered), brand names, company names, copyright notices and similar signs that are shown by, on, within or otherwise contained in the Platform and/or the E-Learning Content.
5.4 All rights concerning the E-Learning Content fully and exclusively remain with the Provider, respectively the Provider’s licensors who licensed the E-Learning Content to the Provider.
5.5 All documentation of the Platform (such as a manual) and, if available, also of the E-Learning Content, is solely provided to you and/or your users within the Platform in electronic form, e.g. via one or more FAQs, help sections and similar Platform features.
6. Technical Requirements
6.1 You are solely responsible for procuring, maintaining and keeping up to date the technical infrastructure that you and your users require for accessing the Platform and the E-Learning Content (e.g. current versions of supported Internet Browsers, Internet connection with sufficient bandwidth, personal computers and other end devices having the required minimum hardware specifications, etc). The minimum technical requirements are described at System Requirements (edu.vamed.com) and form an integral part of the Contract.
6.2 The Provider is not liable for any incompatibilities occurring between the Platform/the E-Learning Content and the hardware and software used by you and/or your users for accessing the Platform and the E-Learning Content.
6.3 To the extent that access to the Platform and/or the E-Learning Content and/or the use of the Platform and/or the E-Learning Content requires the local installation of third party software (such as internet browsers, internet browser plug ins, pdf-readers, video codecs), you and your users shall procure and maintain any such third-party software at your own cost and risk and the Provider’s liability for any such third-party software is fully excluded to the maximum extent permitted by applicable law.
7. Your Content and Your License Grant to Provider in Your Content
7.1 You and your users are solely responsible for each and all Your Content complying with all applicable laws (e.g. that Your Content is not harassing or offending; with regard to third party rights, please see clause 7.3, below). Provider does not have any obligation whatsoever to check, inspect or otherwise review Your Content upon compliance with applicable laws and Provider does not have any corresponding duty to warn you and/or your users whatsoever.
7.2 You and your users grant the Provider an irrevocable, perpetual, non-exclusive, worldwide, transferable and sublicensable license to use and exploit Your Content for the purposes of the Contract, which particularly includes showing, displaying and making available Your Content to third parties within the Platform, making backup-copies of Your Content and making changes and other alterations to the extent such changes/alterations are technically required for showing, displaying and making available Your Content to third parties within the Platform (e.g. changing the format of Your Content and cropping or otherwise shortening Your Content).
7.3 You and your users guarantee that you/your users are eligible to use Your Content on the Platform, particularly to input into and/or upload Your Content onto the Platform, and that Your Content is entirely free from third-party rights of whatever nature, such as intellectual property rights (particularly copyrights and rights to one’s likeness), personality rights and data protection rights.
8. Further Obligations of You and Your Users
8.1 While using the Platform and/or accessing the E-Learning Content, you and your users particularly guarantee that you, respectively your users,
8.1.1 comply with all applicable laws (e.g., data protection laws, laws against harassment, etc);
8.1.2 do not infringe upon third party rights, such as intellectual property rights (particularly copyrights and rights to one’s likeness), personality rights and data protection rights in particular;
8.1.3 do not engage into any activities that may be qualified as obscene, offending, harassing or similar;
8.1.4 will not use any messenger and/or chat systems possibly provided on the Platform for unsolicited communications, particularly unsolicited advertising; and
8.2.5 do not engage into any activities that may interrupt or impair the operation of the Platform – in particular, no viruses, bots, web-spiders, web-crawlers or other malware must be uploaded onto the Platform and no denial of service attacks must be made and/or supported.
8.3 In case you, one of your users or any third party attributable to you and/or one of your users breach any of the above obligations, the Provider is entitled to forthwith terminate your and/or your users’ access to the Platform and/or the E-Learning Content. The Provider shall reinstate the access only if and when any such breach(es) have been fully and permanently remedied. The Provider’s right to forthwith termination of the Contract for cause remains unaffected.
9. Fees
9.1 Any fees payable to the Provider for access to the E-Learning Content are agreed upon as specified in the Contract and any such fee is payable in advance unless agreed upon otherwise in the Contract.
9.2 For late payments, the interest rate is 9% per year.
9.3 You are only entitled to offset any of your claims against the Provider with any of the Provider’s claims to the fee in case the Provider has explicitly acknowledged your claim or your claim was awarded to you by a final court decision. Your possible retention rights are fully excluded in any case.
9.4 You agree that the Provider may submit invoices to you in electronic format only.
10. Accessibility to the Platform and E-Learning Content (“Uptime”)
10.1 The Provider strives to make the Platform and the E-Learning Content accessible to you for 99,85% of the time of one calendar year (briefly “Uptime”).
10.2 The following circumstances are not to be taken into consideration when calculating the Uptime, so that none of these circumstances entail any claims whatsoever, particularly any claims based on the Provider’s default and/or on the impairment of the Provider’s performance:
10.2.1 maintenance windows that were announced on or via the Platform, via the Control Panel or via other communication (e.g., email) to the extent that they were announced within three calendar days in advance;
10.2.2 any and all computer hardware, software and/or network failures that are beyond the Provider’s reasonable control;
10.2.3 force majeure; and/or
10.2.4 any error that was exclusively caused by you, your users and/or any third party attributable to you and/or your users, such as improper handling of computer hardware, software, non-compliance with technical minimum requirements or usage of incompatible computer hardware or software.
11. Provider’s Limited Warranties and Liability
11.1 The Provider warrants that the Platform and the E-Learning Content comply with their technical specifications set out in the corresponding documentation and that the Platform and the E-Learning Content are properly licensed so that no third party copyrights impair the Provider’s provision of the Platform and the E-Learning Content to you. Any and all of the Provider’s further warranties are fully excluded to the maximum extent permitted by law and this particularly also applies to warranty regarding an uninterrupted and error-free accessibility to the Platform and the E-Learning Content.
11.2 In case the E-Learning Content is not accessible, or an error emerges in the E-Learning Content, You, respectively your concerned users, must immediately inform the Provider thereof in writing together with a reasonably detailed and comprehensive description of the non-accessibility and/or the error. Should the Provider not receive that information immediately or completely, then such non-accessibilities and/or errors do not entail any claims against the Provider whatsoever to the extent such non-accessibility and/or error was not caused by the Provider’s gross negligence or willful intent. In any case, you bear the onus of proof for any such non-accessibility and/or error. The applicability of Section 924 of the Austrian General Civil Act (Allgemeines Bürgerliches Gesetzbuch) is explicitly excluded.
11.3 After the Provider received the information set out in clause 11.2, above, the Provider will re-stablish the contractually owned status as soon as possible, i.e., reinstate the accessibility to the Platform and/or E-Learning Content, or remedy the error (as applicable). Your only remedy in such cases is the Provider’s issuance of a Credit Note to you, and with such Credit Note having been issued, all of your possible warranty claims are fully settled to the extent that the non-accessibility and/or the error in question was not caused by the Provider’s gross negligence or willful intent. Any such Credit Note will be applied to the billing cycle(s) following the underlying non-accessibility and/or error.
11.4 Except for personal injuries and death, the Provider’s liability for slight negligence is explicitly excluded. You expressly acknowledge and agree that the services provided by the Provider under this Contract cannot replace individual patient diagnosis and treatment and that the Provider does not assume any liability for patient treatment or care
12. Miscellaneous Provisions
12.1 Any non-exercise of rights and/or claims in a specific case does not hinder any party to exercise its rights and/or claims in other cases. Even a repeated non-exercise may not be interpreted as a waiver.
12.2 You may not transfer or assign your rights and obligations under the Contract to any third party without the Provider’s prior consent, which must be in writing and signed by the Provider.
12.3 Should a provision of the Contract and/or the GTC be or become illegal, invalid and/or unenforceable, such illegality, invalidity and/or unenforceability does not affect the remaining provisions. Any illegal, invalid and/or unenforceable provision shall be deemed replaced by a legal, valid and enforceable provision that reflects the parties’ economic intentions as closely as possible.
12.4 Any changes, amendments, and/or other alterations to the Contract must be in writing and the same applies to any abandonment of this written form requirement.
12.5 The Contract including the GTC are exclusively governed by the laws of the Republic of Austria excluding its conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods.
12.6 The exclusive venue for any dispute arising out of or in connection with the Contract including the GTC is the commercial court competent for the First District of Vienna (Innere Stadt) whilst the Provider at all times remains entitled to file any corresponding claim against you at any court having jurisdiction over you in the Provider’s sole discretion.