Version: June 22, 2015
§ 1 Introduction
1.1 EDLOUD INC., 80 Pine Street, Floor 24, New York, NY 10005 (hereinafter referred to as “EDLOUD INC.“), operates the platform EDLOUD (hereinafter referred to as “EDLOUD”) under different domains, sub-domains and aliases of these domains and subdomains and makes it available to information brokers (hereinafter referred to as “Partners”) and End Users. EDLOUD INC. allows Partners to use the technical framework of EDLOUD in order to create and operate their own online portal to provide goods and services to End Users. These General Terms and Conditions (hereinafter referred to as “T&Cs”) govern the legal relationship between EDLOUD INC. and the End Users.
1.2 By registering as a user of this portal, you (hereinafter referred to as: “End User”) accept the following T&Cs.
§ 2 Definitions
The following terms have the following meanings throughout these T&Cs:
2.1 “Partner“ designates any individual person or legal entity operating an individually created online portal by providing Content & Services within the meaning of § 2.3 to End Users.
2.2 “End User“ designates any individual person or legal entity which uses EDLOUD and is provided with Content & Services within the meaning of § 2.3 by Partners through their online learning portals.
2.3 “Content & Services” designates the content and/ or third party services that Partners place in their Partner Instance. The scope of the Content & Services is defined individually by the Partner. It encompasses, inter alia, learning videos, teaching materials, time tables and other digital content as well as webinars, offline seminars and the like.
2.4 “Partner Platform“ designates any website operated by Partners in the form of an online learning portal.
2.5 “Learning Contract” designates the contract End Users enter into with Partners in order to use the Content & Services provided via online learning portals.
2.6 “User Contract” designates the contract End Users enter into with EDLOUD INC. with respect to the use of EDLOUD.
§ 3 Scope of the T&Cs
3.1 With respect to the Content & Services provided by Partners, an End User only enters into a binding contract, the Learning Contract, with the respective Partner. EDLOUD INC. is not party to the Learning Contracts concluded between Partners and End Users, but merely acts as an intermediary to broker such Learning Contracts. Partners and End Users are solely responsible for the fulfillment of their respective contractual obligations. Therefore, any claim by End Users with respect to the Content & Services has to be brought against their Partners.
EDLOUD INC. provides the technical framework that allows Partners to individually create and shape their online portal through various technical solutions. EDLOUD INC. has the right to act as a representative of the Partners acting with the power to enter into and conclude agreements for them. By ordering Content & Services from an online portal, the End User authorizes EDLOUD INC. to process the Learning Contract. This includes, inter alia, EDLOUD INC. making technically available the Content & Services by storing it on EDLOUD servers.
3.3 The contractual languages are German and English.
3.4 These T&Cs can be accessed under the following link: http://www.edloud.com/user-tos-for-edloud-inc. The End User may also print the T&Cs.
§ 4 Registration, Conclusion of the User Contract
4.1 In order to use EDLOUD and thereby get full access to the Online Platforms and Content & Services offered by Partners, the End User has to complete a registration process. Registration is restricted to persons of full age who possess full legal capacity or is legally entitled to sign contracts for is own in his/ her country of origin. The use of EDLOUD is free of charge and does not oblige the End User to order Content & Services or disclose payment information.
4.2 To register, the End User has to complete the registration form on the respective Partner Platform and provide at least the following information: first name, name, e-mail address and individual password. The End User assures that all of the information he provides and the declarations he makes throughout the registration process are accurate and that he has not used personal data of third parties. The End User promises to inform EDLOUD INC. without undue delay of any change of the information provided.
4.4 EDLOUD INC. reserves the right to perform its contractual obligations through subcontractors at its option.
§ 5 Obligations of the End User
5.1 The log-in data chosen by the End User (e-mail address and password) may only be used by the End User. The End User must not pass the log-in data on to third parties. The End User is under the obligation to keep his log-in data strictly confidential and change it resp. have EDLOUD INC. change it without delay if he becomes aware of any misuse of his log-in data or merely assumes or has reason to assume such misuse.
5.2 The End User is liable for any damage caused by unauthorized use of his log-in data by a third party if he is responsible for the misuse.
5.3 If the End User is in significant or repeated violation of the duty of care arising from § 5.1, EDLOUD INC. reserves the right to (temporarily) block his access to the Partner Platform. The End User will be notified of such measures via e-mail.
§ 6 Ordering Content & Services, Conclusion of the Learning Contract
6.1 Once the End User is successfully registered, he may obtain access to the Content & Services of the Partner Platform in accordance with the modalities offered by the respective Partner. The features and specifications of the Content & Services are defined by the offer descriptions on each Partner Platform. An order placed by the End User on a Partner Platform constitutes an offer directed at the Partner to conclude a learning contract which has to be accepted by the Partner.
6.2 Should the Partner offer Content & Services subject to a charge, The Learning Contract between End User and Partner ist concluded as follows:
6.2.1 To obtain access to the Content & Services, the End User selects the respective Content & Services by pressing the button “Buy Now”. This process does not constitute a contractual offer; the selected Content & Services is merely reserved. Even clicking the button “PROCEED TO CHECKOUT” does not constitute a contractual offer yet.
6.2.2 The End User only makes a binding offer to conclude a contract regarding the use of Content & Services by clicking the “Buy Now” button during the checkout flow. Before he can make this offer, the End User is provided with a summary of the complete content of the offer (product name, price, amount, intermediary and complete sum).
6.2.3 On receipt of the offer, the End User will receive an automatically generated e-mail from EDLOUD INC., confirming the receipt of the order. This receipt confirmation constitutes the acceptance of the contractual offer in the name and on behalf of the respective Partner. At the same time, the selected Content & Services will be unlocked for the End User.
§ 7 Prices and Payment Procedure
7.1 The prices of Content & Services and the term of their use are provided in the offer descriptions on each Partner Platform.
7.2 The payment procedure takes place in accordance with the following provisions:
7.2.1 The Learning Contract is concluded with respect to the Content & Services selected by the End User and at the price shown during the booking process. The total price of the order including any relevant tax is shown to the End User on a separate web page summarising his order before he places it.
7.2.2 The End User must pay the total price shown in the order, possibly in several installments (e.g. subscription), by way of the channel chosen during the booking process (see § 7.2.3). EDLOUD INC. receives the money from the End User on behalf of the respective Partners.
7.2.3 The End User may pay by credit card. With respect to the payment options, the terms of the respective service provider may apply additionally.
7.2.4 Should the End User not fulfil his obligation to pay or should amounts that already have been paid be returned or re-debited, EDLOUD INC. is entitled, reserving further claims, to block the End User’s access to the Content & Services. If the access is blocked due to outstanding payments and the debts are then settled, access will again be granted.
7.2.5 The End User agrees to receive invoices for the goods and services provided by Partners electronically (via e-mail). These invoices are valid without signature.
§ 8 Term of Contract, Termination
8.1 The User Contract between EDLOUD and the End User shall be concluded for an indefinite duration and can be terminated at any time without notice. In order to terminate the contract, a declaration of termination to EDLOUD INC. in textual form (“Textform”, e.g. letter, fax, e-mail) is required. The right to extraordinary termination remains unaffected.
8.2 After termination of the contract, EDLOUD INC. has the right to block the End User’s access to the Partner Platform. EDLOUD INC. is not responsible for securing the Content & Services provided on the Partner Platform. End Users are therefore encouraged to back up any relevant data in due time before the term of the User Contract expires.
§ 9 Availability, Maintenance
9.1 EDLOUD INC. endeavors to provide unimpeded access to the Content & Services on Partner Platforms made available through EDLOUD 24 hours a day, 7 days a week and to refine and adapt the access in accordance with the needs of End Users. However, if a Partner cancels his/ her contract with EDLOUD INC. he/ she will be responsible for giving access to the Content & Services as agreed upon in the Learning Contract.
9.2 Temporary service interruptions because of common maintenance work, disturbances inherent in the system of the internet due to, inter alia, foreign providers or network operators or due to force majeure cannot be prevented. The End User therefore is not entitled to uninterrupted accessibility of Partner Platforms at any time.
§ 10 Warranty, Content of Partner Platforms
10.1 The Partners are solely responsible for the Content & Services and offers of their online learning portals. EDLOUD INC. does not warrant the legality, accuracy, completeness and/or currentness of the Content & Services and other data published on Partner Platforms.
10.2 In accordance with § 7 Section 1 of the German Telemedia Act (TMG), EDLOUD INC., as a service provider, is responsible under general law for its own contents on Partner Platforms, if any. However, in accordance with §§ 8 – 10 TMG, EDLOUD INC. is not obliged to monitor any other content transmitted or stored or to investigate any circumstances that indicate illegal activities. Obligations for the removal or blocking of the use of content in accordance with the general laws remain unaffected. Liability in this respect may be assumed only from the time when EDLOUD INC. is notified of a specific infringement. Once EDLOUD INC. becomes aware of such legal violations, the respective illegal content will immediately be removed.
10.3 The use of web services bears certain risks. These risks include, but are not limited to, the transmission of malicious software, spam e-mails, theft of passwords or other personal data, electronic invasion, manipulation or hacking as well as other forms of unauthorized disclosure of personal data of End Users. EDLOUD INC. will undertake appropriate means to minimize such risks, but does not assume liability for claims arising in connection with such risks, and is in particular not responsible for any content provided by Partners, including any Content & Services. The use of EDLOUD takes place at the End User’s own risk.
§ 11 Limitation of Liability
EDLOUD INC. shall be fully liable according to statutory law for intent or gross negligence, including for intent or gross negligence of its vicarious agents, under the German Product Liability Act (ProdHaftG) and in the event of the breach of a guarantee for the conditions of goods (“Beschaffenheitsgarantie”). EDLOUD INC. shall also be fully liable for any harm or injury of life, body or health caused by ordinary negligence by EDLOUD INC. or its vicarious agents. In the event of property or financial damages caused by ordinary negligence for which EDLOUD INC. is responsible, EDLOUD INC. shall be liable for a breach of material contractual duties (“Kardinalpflichten”). Material contractual duties are duties the fulfilment of which is essential for due implementation of the contract and on which the End User can reasonably expect to be able to rely. However, in the event of a slightly negligent breach of material contractual duties EDLOUD INC.’s liability shall be limited to the foreseeable damage which is intrinsic to the contract. The maximum foreseeable damage which is intrinsic to the contract amounts to 50.000 EUR per case. Any further liability of EDLOUD INC. shall be excluded, regardless of the legal ground.
§ 12 Data Protection
§ 13 Amendments
EDLOUD INC. has the right to amend these T&Cs at any time, unless material stipulations of the contractual relationship (such as the nature, scope, term and termination) are concerned. Such amendments are necessary, inter alia, in case of regulatory gaps (e.g. by changes in the law; court decisions deeming these T&Cs void). End Users will be notified of such amendments in textual form (“Textform”) six weeks before taking effect, at the latest. The amendments are deemed to be approved by the End User if he does not object within six weeks after notification. In case of an objection by the End User, the amendments do not become part of the agreement between the parties, and the contract remains unchanged. In the notification, EDLOUD INC. will expressly inform End Users about the possibility to object, the term of notice, and the consequences of not objecting. The right of termination remains unaffected.
§ 14 Applicable Law
These T&Cs and the contract between EDLOUD INC. and the End Users shall be governed by the laws of the Federal Republic of Germany. The Convention on Contracts for the International Sale of Goods does not apply.
§ 15 Final Provisions
15.1 Any changes and supplements to the T&Cs shall require the written form to be effective.
15.2 Should any provision of these T&Cs be invalid, this shall not affect the validity of all other provisions of the T&Cs.
15.3 If the End User is a merchant within the meaning of the German Commercial Code (HGB) or a legal entity or special fund under public law, the exclusive place of jurisdiction for all disputes between the parties arising out of the User Contract or these T&Cs shall be Berlin, Germany.
§ 16 Provider Identification
Our contact information is:
represented by its managing directors Moritz Hunsdiek and Nikolaus Thomale
New York Office
80 PINE STREET, FLOOR 24
NEW YORK, NY 10005
Alte Jakobstr. 78
e-mail: [email protected]
telephone: +49 (0) 30 57 70 114 00
New York, 06/22/2015