Terms and conditions
Terms of Service by eForce21 GmbH for the use of the DataGym.ai services
§ 1 Scope
These terms of service by eForce21 GmbH for the use of the DataGym.ai tool (as applicable from time to time “ToS”) apply for contracts between eForce21 GmbH (“eForce21”) and its customers as business persons (section 14 German Civil Code, Bürgerliches Gesetzbuch (BGB)) (“Customer”) regarding the use of the ‘DataGym.ai’ IT tool (software-as-a-service) (“Software” or “Tool”) as described in detail on https://datagym.ai/ (“Website”) and related services (the Software and related services jointly the “Service(s)”). The provided scope of the Services depends on the package the Customer subscribes for.
The Customer shall be fully responsible for the compliance with these ToS by its respective users using the Services.
Customer shall support eForce21 in respect to the Services within reasonable scope.
§ 2 Availability; Changes to the ToS
The ToS are available on the Website (https://datagym.ai/terms/) at any time.
eForce21 is entitled to change these ToS at any time with a reasonable notice period. After the publication of an amendment notice, the Customer has an extraordinary right of termination of the agreement based in these ToS. The changes shall be deemed approved, if the Customer does not object in writing to the changes within the reasonable notice period and has been notified of such effect in the respective amendment notification.
§ 3 Services provided by eForce21
The use of the Software requires the successful registration as well as the set-up of a user administration account (“Account”) via the Website. Customer must fill in all required fields in the sign-up form truthfully and completely. By clicking on the respective sign-up-button the Customer submits an offer on the conclusion of an agreement to use the Tool (and related Services) and agrees to these ToS valid at the time of registration. eForce21 accepts this offer in writing or by providing the Service.
There is no legal entitlement for using the Service provided. eForce21 has the right to stop or deny any registration without giving any reasons.
eForce21 makes the Tool available on its own servers or on the server of an engaged data processor (“Data Centre”). The Software is kept available via this Data Centre along with the data that is recorded, elevated, used and held, saved onto the open platform and kept available for remote data access in the interest of intended polling. Use of the Tool will be made available to the Customer by eForce21 from the router output via the Data Centre. The establishing and maintaining of the data connection between the Tool user’s end device and the delivery point operated by eForce21 falls under the Customer’s responsibilities. Accessing the data saved onto the Tool will no longer be possible for the Customer after termination of the agreement.
Access to the Tool and the stored data is possible at all times outside of the maintenance window, unless eForce21 is required to carry out emergency support works or take other urgent measures in order to maintain the Tool’s usability. The object or source code of the Software will not be disclosed.
eForce21 is not obliged to make a document or a separate instructions manual available to the Customer. eForce21 will give an overview of the Tool’s basic functions and will give the Customer access to the relevant information, if necessary.
§ 4 Intellectual Property Rights
Customer acknowledges that all copyrights, trademarks, and other intellectual property rights in and relating to the Services are owned by or licensed to eForce21.
§ 5 Rights in case of defects; Changes to and development of the Tool
The Software made available to Customer shall essentially correspond to the product description according to this agreement. Warranty claims do not exist in the case of an insignificant deviation from an agreed or presumed quality and in the case of only insignificant impairment of usability.
As a matter of principle, the statutory provisions for warranty in rental contracts shall apply. The provisions set forth in section 536b BGB (Kenntnis des Mieters vom Mangel bei Vertragsschluss oder Annahme) and section 536c BGB (Während der Mietzeit auftretende Mängel; Mängelanzeige durch den Vermieter) shall apply. However, the provisions set forth in section 536a para. 2 BGB (Selbstbeseitigungsrecht des Mieters) are excluded. Also excluded is the application of Section 536a para. 1 BGB (Schadensersatzpflicht des Vermieters) insofar as such provision causes liability regardless of fault and not due to any guarantee.
In all other respects, the provisions of service contract law (section 611 et seq. BGB) shall apply.
According to § 2 above, eForce21 is entitled to change the design and to adapt the structure and functions of the Tool and will inform the Customer of any significant changes. If eForce21 is obliged to remove any errors / shortcomings of the Tool and to bring about / maintain the contractually elaborated nature of the Tool, eForce21 is entitled to choose the method in which it removes said shortcomings. eForce21 is entitled to decline the use of the Tool and the saved data once a week for a maximum of four (4) hours, in order to be able to bring changes to the tool or to carry out other maintenance activities. eForce21 will try to keep the limitations to a minimum, for example by carrying out the works at night. Customer notes that eForce21 may not be responsible for any interruptions of the Tool caused by the engaged third party providers (as named in the data processing agreement https://datagym.ai/privacy/). Any binding statutory rights of Customer related to rights in case of defects shall remain unaffected.
In the event of any defects or errors relating to the Services Customer shall report such defects or errors via email to email@example.com and include sufficient details relating to the defect in such reporting.
§ 6 Content; Rights Grant
When using the Tool and Services Customer (or its users) may provide or upload content in or as part of the Services such as texts, photos, graphics, videos, data of any form, etc. (“Content”). In general, all copyrights, trademarks, and other intellectual property rights in and relating to such Content shall be owned by or licensed by Customer. When providing any Content in the Services Customer grants to eForce21 for an unlimited time a world-wide, non-exclusive, royalty-free, sub-licensable and transferable license to use, modify, publicly perform, publicly display, reproduce, and distribute Content on and through the Services, as well as use the Content to improve the Services.
Customer bears responsibility for ensuring that the Content entered comply with the relevant laws and regulations, and, importantly, do not infringe any third party’s rights.
§ 7 Customer’s Warranty
Customer hereby represents and warrants that, as applicable, (i) it owns such Content provided, holds the necessary rights or is otherwise authorized to use such Content for the purpose of the Service, and (ii) such Content does not infringe any third party rights (copyrights, trademarks, other intellectual property rights) or infringes such third party’s privacy.
Should eForce21 be notified that a profile contains unlawful content (such as texts, photos, videos etc.), eForce21 is legally entitled to block this profile temporarily or permanently, eForce21 will inform the Customer of the third party’s complaint, allow the Customer (or its user) to justify the related statement and forward the justification to the third party if reasonable.
§ 8 Prohibited Use
Customer agrees not to upload, transmit, support, incite, promote or otherwise make available any content that is or could reasonably be viewed as unlawful, racist, hostile, violent, discriminatory (including relating to race, religion, sex, sexual orientation, age, disability, ancestry or national origin), harmful, harassing, defamatory, vulgar, obscene or otherwise objectionable or which contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. eForce21 has the right to remove uploaded content, if eForce21 decides in its sole discretion that it results in or from a breach of law or any part of these ToS.
In particular, Customer (or users) may not
use the Services for any other purpose than provided for in these ToS, in particular, not offer the Services to unauthorized third parties or sell, sub-license, lease, transfer or otherwise commercially exploit the Software;
interfere with or disrupt the Services or servers or networks;
remove or amend any proprietary notices or other ownership information from the Service;
collect or harvest any personally identifiable information, including account names, from the Service;
decompile, reverse engineer, disassemble or hack any of the Service or defeat or overcome any of eForce21′ (or engaged third party providers’) encryption technologies or security measures;
conduct any action that restricts or inhibits anyone’s use or enjoyment of the Service or may harm or offend or expose eForce21 or its users to liability, in particular refrain from use that can disable, overburden, damage or impair the Service (or the ability to engage in real time activities via the Service) or use of robots, spiders or other automatic device, process or mean (to access the Service);
use any device, software or routine to interfere with the proper working of the Service, in particular, not use any viruses, trojan horses, worms, logic bombs or anything malicious or technologically harmful;
not perform attempts for unauthorised access, interference, damage or disrupt, copying, distributing or disclosing any parts of the Service;
transmit or procure of any junk mail, chain letter, spam, or any other similar solicitation;
harm minors by exposure of inappropriate content, including but not limited to Content;
impersonate eForce21, eForce21′ employees or other users of the Service or their employees;
pursue any threatening, fraudulent, harmful purpose or activity; and/or
use the Services in any other way not permitted by these ToS.
In the event of a violation of the above by the Customer eForce21 shall be entitled to deny access to the Services (temporarily) and – if reasonable – immediately terminate the agreement.
§ 9 Customer Account and Information
Depending on the package the Customer has chosen for the use of the Tool, Customer may set up additional user accounts for ‘editor(s)’ via the admin Account and control and edit the admin rights relating to such additional user accounts. Customer shall be solely responsible for such Account and additional user accounts (if any) according to the details set out in these ToS.
If there are any changes to the Customer’s relevant information, e.g. billing or email address, Customer is obliged to inform eForce21 of the new data immediately in writing, for example via changing the settings in the Account, provided this is relevant to the fulfillment of the agreement.
§ 10 Back-up rights and obligations
The Customer is obliged to regularly save / backup data, including Content, created by or saved onto the Tool itself, either analogically or digitally.
eForce21 is entitled to regularly make backups (backup copies) to comply with its legal obligations (including retention periods), secure an optimal running of the Tool or in case eForce21 has a legitimate interest in the backup / archiving of contents, for example if a third party has published claims against eForce21 or users eForce21 is entitled to keep the relevant backup / archived content for such purposes, in general until the legal ending of these proceedings.
§ 11 Liability of eForce21
For services by eForce21 free of charge the following shall apply: To the extent that eForce21 provides services to you free of charge, eForce21 shall only be liable in accordance with the statutory provisions, provided that claims for damages are based on willful intent (Vorsatz) or gross negligence (grobe Fahrlässigkeit).
For services by eForce21 against payment the following shall apply: To the extent that eForce21 provides services to you against payment, eForce21 shall only be liable for any loss or damages caused by willful intent (Vorsatz) or gross negligence (grobe Fahrlässigkeit). eForce21 shall only be liable for slight negligence, if an essential contractual obligation is violated, which is indispensable for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose.
The limitation of liability in the above mentioned paragraphs of this Section does not apply to claims for damages that result from injury to life, body or health, in cases of warranting for the condition of a product or service, under the Product Liability Act and in cases of fraudulent concealment of defects by eForce21.
The limitation and/or restriction of eForce21′ liability in this Section shall equally apply to the personal liability of its legal representatives, officers, employees, assistants in performance and agents.
§ 12 Remuneration; Price List
The remuneration for the Services is determined by the current price list at the moment of entering into the agreement based on these ToS as displayed on the Website https://datagym.ai/ (“Price List”). All prices are excluding VAT.
§ 13 Payments and Billing
eForce21 uses Stripe https://stripe.com/ as a third party payment processor (“Payment Processor(s)”) to bill the Customer through a payment account linked to its Account (“Billing Account”) for use of the paid Services. The processing of payments may be subject to the terms and conditions as well as the privacy policies of the Payment Processors in addition to this agreement. eForce21 is not responsible for any defects related to or services by the Payment Processors. By choosing to use paid Services, the Customer agrees to pay eForce21 through the Payment Processors, all charges at the prices then in effect for any use of such paid Services in accordance with the applicable payment terms and Customer authorizes eForce21, through the Payment Processors, to charge the chosen payment provider (“Payment Method”). Customer agrees to make payments using that selected Payment Method. All invoices are denominated, and Customer must pay as set out in the Price List, currently in U.S. Dollars only. Customer shall be obliged to pay monthly on or about the first day of each month, if not otherwise agreed in writing with eForce21. On rare occasions, the Customer may be billed an amount up to the Customer’s current balance in an effort to verify the authenticity of the Customer’s account information. This process ensures that Customers without a payment history are not subjected to additional scrutiny. Customers outside of the European Union (EU) are entirely responsible for the payment of all taxes. For specific pricing policies, please refer to the current Price List. Monthly fees and renewal fees will be billed at the rate agreed between the parties at the time of successful subscription.
Customer must provide current, complete and accurate information for its Billing Account, must promptly update all information to keep them current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and promptly notify eForce21 or our Payment Processors if the payment method is canceled (for example for loss or theft) or if Customer becomes aware of a potential breach of security, such as the unauthorized disclosure or use of user name or password. Changes to such information can be made under ‘Billing settings’ in the Account of the Customer. If Customer fails to provide any of the foregoing information, Customer agrees that eForce21 may continue charging Customer for any use of paid services under the Billing Account unless Customer has terminated the paid services as set forth herein.
Payments not made within ten (10) days of invoicing will be deemed in arrears. For accounts in arrears, if any amount is more than ten (10) days overdue, without the requirement of providing notice of such arrears, eForce21 may suspend service to such account and bring legal action to collect the full amount due, including any attorneys’ fees and costs. If a Customer is past due on their balance, eForce21 may send up to two (2) email notifications within a fifteen (15) day period before suspending the respective Account.]
§ 14 Term; Termination
The agreement based on the ToS is entered into for an indeterminate period of time and can be terminated by each party by the end of the month with a notice period of 14 days. The right to termination for cause remains unaffected. Any termination shall be in text form. The Customer may cancel the Services at any time by sending an email to firstname.lastname@example.org including the full name, email address, phone number and business address of the Customer and its representing contact person. After the cancellation being effective, the customer’s Account will be inactivated and the Customer will no longer be able to log into the Website and/or have any access to the Services.
§ 15 Confidentiality
Each party agrees and undertakes, with respect to any information received by the respective other party marked as ‘confidential’ or appearing confidential (“Confidential Information”):
to examine and use all Confidential Information only for the purpose of the Services, and not to use the Confidential Information for its own benefit or to compete or obtain advantage vis-à-vis each party’s in any commercial activity or transaction which may adversely affect such party;
not to disclose Confidential Information to any third party, whether in whole or in part either directly or indirectly in any shape or form, except to each party’s employees or representatives and/or other users of the Service as is reasonably required in connection with using the Service;
not to copy, reproduce or reduce to writing any part of the Confidential Information except as may be reasonably necessary pursuant to the first bullet point above and to ensure that any copies, reproductions or reductions to writing so made shall be the property of the respective party.
This obligation shall not apply to any information that is or becomes generally known to the public through no fault or breach of these ToS or any other confidentiality obligation applicable; is legally known to a party at the time of disclosure without an obligation of confidentiality; or a party rightfully obtains from a third party without restriction on use or disclosure and without a breach of a confidentiality obligation by such third party.
Each party is obligated to inform the respective other party immediately if such party becomes aware of any violation of this Section.
Nothing in these ToS grant any rights to any party under any patent, copyright, trade secret or other intellectual property right nor will these ToS grant any rights in or to the Confidential Information except as expressly set forth in these ToS.
§ 16 Personal Data and Privacy
§ 17 References; Feedback
Customer agrees that eForce21 may identify the Customer (or company and use company’s logo) on the Website and in marketing materials to identify Customer (or company and use company’s logo) as a user of the Services, and Customer hereby grants eForce21 a non-exclusive, royalty-free license to do so on the Website or in any media now or later developed in connection with any marketing, promotion or advertising of the Website or the Services, and if Customer provides suggestions, ideas, feedback, or recommendations to eForce21 regarding the Website or the Services (“Feedback”), eForce21 will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as eForce21 sees fit, without any obligation or restriction of any kind to Customer.
§ 18 Final Provisions
If these ToS refer to written form text form according to section 126b BGB (for example via email) shall be sufficient.
This agreement and its interpretation are subject to the jurisdiction of the Federal Republic of Germany, to the exclusion of the Convention of the United Nations on Contracts for the International Sale of Goods (CISG). Any statutory provisions on the limitation of the choice of law as well as the applicability of mandatory laws especially by the state, in which a consumer has his usual place of residence, shall not be affected.
Place of jurisdiction for each and any legal dispute arising from or being in connection with this contract shall be the registered office of eForce21, provided Customer is a business person and to the extent permitted by and compatible with the law.
In case individual provisions in these ToS, including this provision, are or become invalid, or in case of gaps arising in these ToS, the validity of all other provisions will not be deemed affected thereby. Instead of the ineffective provision or for replenishment of gaps an adequate provision will apply. In case this may constitute an unreasonable hardship for one of the contracting parties the contract shall become ineffective as a whole.