General Terms and Conditions (GTC) – SaaS Software for Development Assessment

§ 1 Subject Matter of the Contract and License

OkiTalki IT-Service und Softwarevertrieb, Dipl. Kaufmann Thomas Fantes, Moselbahnstrasse 23, Köwerich, 54340 (hereinafter: the Contractor) provides the Customer with a software solution (“Software”) by means of a cloud service according to the Software-as-a-Service (SaaS) model. The Software is operated on servers of the Contractor or a data center commissioned by the Contractor and made available to the Customer for use via an internet connection. The Customer is solely responsible for providing the technical requirements (e.g., end devices, internet access, current browsers).

The Software enables the Customer to record, store, and evaluate data on behaviors and developmental characteristics of children. Based on this, assessments of the respective developmental status can be created. The Software does not constitute a medical, psychological, or therapeutic diagnostic service.

Access to the Software is also possible via mobile devices (e.g., smartphones, tablets) using a web app. However, the Contractor is not obliged to provide all functions in the mobile version in an identical manner. Functional limitations in mobile use do not constitute a defect.

The Customer receives a simple, non-exclusive, non-transferable license to use the Software limited to the contract duration. This right entitles the Customer exclusively to use the Software within the framework of the contractually agreed purposes. Transfer, rental, leasing, sublicensing, or any other form of making available to third parties is prohibited unless the Contractor has expressly consented to this in text form.

The Software is provided in its current state of development (“as is”). The Customer has no claim to adaptation, modification, expansion, or further development of the Software. The Contractor is entitled to update, expand, or modify the Software at any time at its own discretion, provided that the essential purpose of the contract is not impaired.

All rights to the Software, in particular copyrights, trademark rights, protective rights, and all other industrial property rights, remain with the Contractor. The source code of the Software is not disclosed. The Customer never receives ownership of the Software, but only the usage rights specified in the contract.

The Customer undertakes to use the Software exclusively in accordance with the contract and in compliance with applicable legal provisions. In particular, the Customer is prohibited from:

copying, editing, reverse engineering, decompiling, or otherwise modifying the Software or parts thereof,

circumventing technical protection measures or access restrictions,

using the Software for unlawful purposes or in a manner that violates the rights of third parties,

using the Software in a manner that could impair the proper operation of the systems of the Contractor or its subcontractors.

§ 2 Remuneration

The remuneration for the use of the booked license is based on the content of the respective purchased option modality. Details can be found in Annex I of this contract.

§ 3 System Requirements, Cooperation Obligations

The supported system landscapes, browsers, and operating systems are determined by the Contractor. There is no claim to support for specific versions.

The provision of services requires the cooperation of the Customer.

In particular, the Customer must enter data completely and correctly and download created evaluations.

The Contractor provides the Software in a functional state; the results depend on the timely and proper cooperation of the Customer.

If cooperation is completely or partially absent, the Contractor is not liable for limitations or missing results.

§ 4 Registration and User Obligations

A one-time registration is required to use the Software. The Customer must provide correct and complete information.

Access data (username, password) must be kept secret and protected against unauthorized use.

Changes to contact data must be updated immediately.

The Customer is responsible for all activities carried out using their access data.

The Software must not be used abusively, in particular not for unauthorized access to third-party data, circumvention of technical protection measures, or distribution of harmful software.

§ 5 Availability and Support

The Contractor provides the Software in a functional version during normal business hours.

The Software should achieve 98% availability per calendar month; planned maintenance work is announced in good time.

Excluded from availability are force majeure, war, strikes, natural disasters, disruptions by third parties, or unauthorized use.

Support includes:

Answering operational questions,

Resolving disruptions to the SaaS platform,

Providing updates and security patches.

Support requests must be submitted via the provided communication channels. Response times:

Critical errors: within 24 hours,

Other requests: within 3 working days.

§ 6 Data Protection

The Contractor processes personal data exclusively in accordance with applicable legal provisions, in particular the General Data Protection Regulation (GDPR), the Federal Data Protection Act (BDSG), and other applicable data protection regulations.

Personal data is processed exclusively for the fulfillment of this contract, in particular for the use and provision of the Software, for the creation of development analyses, as well as for invoicing and customer support. Processing for other purposes is excluded.

Personal data is only passed on to third parties insofar as this is necessary for the fulfillment of the contract or required by law, in particular:

to IT service providers (hosting, data centers),

to public authorities on the basis of legal provisions,

to other third parties only with the express consent of the Customer.

The Customer is responsible for compliance with data protection regulations regarding the data they enter into the Software, particularly in the case of data concerning children.

The Contractor applies appropriate technical and organizational measures to protect personal data against loss, misuse, and unauthorized access.

The Customer has the right at any time to obtain information about their stored data and may request their correction, deletion, or restriction of processing in accordance with applicable data protection regulations.

Detailed information on the processing of personal data can be found in the Contractor’s Privacy Policy, which is available on the website or upon request.

§ 7 Contract Duration and Termination

The contract is concluded for an indefinite period and can be terminated by either party with one month’s notice to the end of a calendar month.

The right to extraordinary termination for good cause remains unaffected. Good cause exists in particular if:

a) one of the parties seriously violates its essential contractual obligations, b) the Customer’s use of the Software is unlawful, c) legal requirements, in particular data protection regulations, are violated.

The Customer has a special right of termination in the following cases: a) Price adjustments or changes to the GTC, insofar as these occur in accordance with § 17 of this contract and the Customer does not consent to the changes, b) Non-contractual performance, in particular if the Software is unavailable or defective for a period of more than 48 hours, provided the defect is not remedied immediately.

Upon the effective date of termination, the Customer’s right to use the Software automatically expires. The Customer is obliged to download all data created by the Software and delete all access data received. The Contractor reserves the right to delete all Customer data after the end of the contract in accordance with data protection regulations, unless there are statutory retention obligations.

After termination of the contract, the Contractor provides the Customer with all still available data in a common, standardized format. With the final handover of data, the contract is fully settled.

§ 8 Non-Compete Clause

Business customers undertake not to operate or participate in a directly competing business for two (2) years after the end of the contract.

The prohibition applies geographically in Germany and all states in which the Contractor was active or maintained business relationships.

Excepted are activities that the Contractor has approved in writing.

§ 9 Liability

The Contractor is unlimitedly liable for damages resulting from injury to life, body, or health based on an intentional or grossly negligent breach of duty by the Contractor, its legal representatives, managerial employees, or vicarious agents. This includes in particular damages caused by malfunctions of the Software or by improper advice, insofar as these are causally based on intentional or grossly negligent behavior.

For all other damages, regardless of the legal grounds (e.g., property damage, financial loss, lost profits), the Contractor is only liable if these are based on intentional or grossly negligent behavior or if an essential contractual obligation (cardinal obligation) has been violated. a) Cardinal obligations are those contractual obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the Customer may regularly rely. b) Liability for damages resulting from the violation of cardinal obligations is limited to the contractually typical, foreseeable damage. This applies in particular to indirect damages, lost profits, or loss of use, insofar as these are not based on intentional or grossly negligent behavior.

For slightly negligent breaches of duty, the Contractor is only liable if a cardinal obligation is violated. In all other cases, there is no liability for slight negligence.

The liability limitations also apply to legal representatives, managerial employees, vicarious agents, and other persons whose fault the Contractor must answer for under legal provisions.

The Contractor is not liable for indirect damages, consequential damages, or lost profits resulting from loss of use, incorrect software evaluations, or improper interpretation of results, unless there is intentional or grossly negligent behavior.

The Software represents an auxiliary tool for analysis and evaluation. The Contractor assumes no liability for decisions by the Customer based on the results of the Software, unless these decisions are based on an intentional or grossly negligent error of the Software itself.

§ 10 Medical Liability Exclusion

The Software provided by the Contractor does not constitute a medical, therapeutic, or diagnostic service and in no case replaces a medical examination, diagnosis, treatment, or consultation by qualified medical or therapeutic professionals. In particular, the Software does not replace medical assessment in the sense of child or adolescent healthcare.

The Software serves exclusively for the recording, analysis, and presentation of behavioral and developmental characteristics of children for pedagogical, psychological, or scientific-methodological purposes. All generated evaluations, reports, or recommendations are to be understood as auxiliary tools for pedagogical or scientific decisions and do not constitute legally binding medical diagnoses.

Decisions, actions, or interventions taken on the basis of Software results are solely the responsibility of the Customer. The Contractor assumes no liability for decisions or measures that the Customer or third parties take on the basis of Software results.

The Software may provide indications of developmental stages or possible support needs, but there is no guarantee for the completeness, accuracy, or suitability of the results for individual decisions. Results depend on the quality, completeness, and correctness of the entered data.

The Contractor is not liable for the use of the Software by third parties or for consequences arising from recommendations or actions of third parties, even if these are based on the evaluations of the Software.

The Software may only be used supplementarily and in conjunction with professionally qualified specialists. Pedagogical or therapeutic measures should not be based exclusively on software evaluation but should always be validated by appropriate specialists.

Customers are expressly advised that incorrect or incomplete data entry, improper interpretation of results, or unauthorized action recommendations may lead to incorrect decisions or false assessments.

§ 11 Adjustment of GTC and Price Adjustment

Business customers (B2B): The Contractor informs the Customer about changes to the General Terms and Conditions (GTC) in electronic form and specifies the time from which the new GTC will apply. If the Customer does not object in writing within six weeks of receiving the notification, the amended GTC are deemed accepted.

Consumers (B2C): Changes to the GTC only take effect if the Customer expressly consents to the changes. The Contractor sends the amended GTC and requests active consent. If the Customer refuses or does not give consent, the previous contract remains unchanged.

Business customers (B2B): The Contractor informs the Customer about price adjustments in electronic form and specifies the date from which the new price applies. The Customer may object in writing within six weeks or terminate the contract with effect from the effective date of the price adjustment. If no termination or objection is declared, the price adjustment is deemed accepted.

Consumers (B2C): Price adjustments only become effective if the consumer expressly consents to the new conditions. At the same time, the consumer is granted a special right of termination that can be exercised before the price adjustment takes effect.

The Contractor expressly points out the respective legal consequences in all notifications regarding GTC changes and price adjustments, in particular the necessity of active consent by consumers or the special right of termination.

§ 12 Choice of Law, Jurisdiction, and Miscellaneous

The authoritative version for the use of these General Terms and Conditions is the German language version. Any translations into other languages merely represent a convenience service of the Contractor. In the event of a discrepancy between the German version and a translation, the German version shall prevail.

All contracts are subject to the law of the Federal Republic of Germany, excluding private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

The exclusive place of jurisdiction for disputes arising from or in connection with this contract is Trier, provided that the contracting parties are merchants, legal entities under public law, or special funds under public law and no legally exclusive place of jurisdiction exists.

There are no side agreements. Changes, additions, cancellations, and side agreements require written form. This also applies to the cancellation of this written form requirement.

The parties may not transfer rights and obligations from this contract to third parties without the prior written consent of the other party.

Any General Terms and Conditions of the Customer do not apply, even if they are not expressly objected to.

Should individual or multiple provisions be wholly or partially invalid or unenforceable or become so, the validity of the remaining provisions remains unaffected. The same applies to a regulatory gap. The parties are aware that, according to the case law of the Federal Court of Justice, a severability clause merely shifts the burden of proof; however, the parties expressly wish to ensure the validity of the remaining provisions under all circumstances and thus exclude § 139 BGB.

A regulatory gap must be replaced by a provision that comes as close as possible to the economic will of the parties.