General Terms and Conditions for the "TestTrainer" of CYQUEST GmbH
1 Scope of Application
- The following General Terms and Conditions (GTC) apply to the business relationship between the Customer of CYQUEST GmbH (hereinafter referred to as Customer) and CYQUEST GmbH, Heußweg 25, 20255 Hamburg, Germany, represented by the managing directors Joachim Diercks and Ramin Mirhachemzadeh (hereinafter referred to as CYQUEST) regarding the software-as-a-service solution "TestTrainer".
- CYQUEST does not recognise any general terms and conditions of business or contract of the Customer that conflict with or deviate from these GTC, unless CYQUEST expressly agrees to their application in writing. These General Terms and Conditions shall also apply if CYQUEST performs the service for the Customer without reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these General Terms and Conditions.
2 Subject Matter of the Contract
- CYQUEST has developed and implemented the "TestTrainer" in the form of a Software-as-a-Service solution. It is a tool with which Customers can prepare for the completion of an online assessment by completing tests and exercises for practice purposes, as they regularly occur in online assessments for personnel, trainee and student selection. The Customer can access the software via telecommunication connections (Internet) and use its functionalities within the scope of this contract.
- This contract regulates the rights and obligations of the parties arising from this user relationship.
3 Services of CYQUEST GmbH
- CYQUEST provides the Customers with the TestTrainer, an online assessment, which the Customers themselves or third parties can complete for testing purposes. The online assessment contains scientifically founded and validated test procedures, as they are also used in practice by numerous companies for the selection of personnel, trainees or students.
- The TestTrainer contains the following test procedures:
- Continuation of annual figures (testing numerical performance)
- Culture Fair Test (testing general cognitive performance)
- Finding synonyms (testing verbal performance)
- Reviewing target-actual figures (testing concentration and processing speed)
- Analysing charts (testing figural inductive performance)
- Arithmetic operators (testing numerical performance).
- The time required to complete all six tests is approximately 60 minutes.
- The TestTrainer offers tips and explanations between the test procedures on how the Customer can specifically improve and what to look out for when completing such tests.
- The TestTrainer offers the possibility to interrupt the test and continue at a later time.
- The TestTrainer produces a score report for the Customer after all test modules have been completed. This provides feedback on the overall performance in the test modules, not on individual items. The test report is immediately available online. The test report can be encrypted with a password by the test taker so that third parties who have been given access to the test link cannot access the test report.
- CYQUEST hosts the software. The hosting is done on a server that meets the requirements of the application.
- CYQUEST will provide user documentation, marked as a help section and accessible via a navigation point in the footer.
- CYQUEST offers access to the software also via mobile devices by means of responsive optimisation of the web interface for the SaaS solution for mobile phones (Android and iPhone).
- CYQUEST is responsible for the maintenance of the Software in order to keep it in a functional state. This includes ordinary maintenance work and the installation of necessary patches.
4 Conclusion of Contract, Ordering Process, Receipt of Test Links, no Delivery of Digital Content (no Right of Withdrawal)
- The conclusion of the contract for the use of the TestTrainer in accordance with these general terms and conditions takes place in the following way.
- The Customer clicks on the button "I am ready".
- The Customer clicks on "Buy Now" on the order page that opens, on which the price per test is shown.
- The Customer must declare how many test accesses, i.e. test links, he would like to receive.
- The Customer must accept PayPal as the payment method.
- The Customer will again be shown the price for using the TestTrainer; the price shown depends on the number of test accesses ordered (CYQUEST's offer to conclude the contract).
- The Customer must accept these GTC by ticking an opt-in box.
- The Customer can trigger the concrete order by clicking on the button "proceed to PayPal" (acceptance of the offer of CYQUEST by the Customer).
- After payment, the Customer will be redirected to the page of the TestTrainer and will receive there the link or, in case of ordering several, the links to the TestTrainer.
- At the same time, the Customer will receive the test link(s) via the e-mail address that has already been verified and is stored with PayPal.
It is hereby clarified that the provision of an access link for the authorised use of the "TestTrainer" application does not constitute a "delivery of digital content". There is no delivery of digital content within the meaning of § 327 German Civil Code (BGB). As a result, there is no right of withdrawal according to § 312f para. 3 BGB.
5 Rights of Use
- CYQUEST grants the Customer the non-exclusive right to access the software by means of telecommunication connections (via the Internet) and to use the functionalities associated with the software by means of a browser in accordance with this agreement and the following provisions.
- Each test link is valid for three years.
- Each test link purchased entitles you to go through the test trainer once and to receive the corresponding test report.
- The test report can be accessed after the test has been completed.
- Each Customer can purchase several test links and make these test links available to third parties free of charge or cost-neutral. Cost-neutral means that the customer may make the tests available to third parties at the same price at which the test was purchased. This right is intended to enable educational and youth work organisations such as schools, universities, other public institutions as well as associations or youth clubs to acquire test links and, if necessary, to have the costs for this reimbursed by the testers or their representatives.
- For each case in which the Customer culpably enables the use of the software by third parties contrary to these agreements, the Customer shall pay an immediately due contractual penalty, the amount of which shall be at the discretion of CYQUEST and appropriate to the respective violation, the amount of which shall be reviewed by the competent court in the event of a dispute. A contractual penalty of at least 500.00 EUR shall be considered reasonable. Any additional claims for damages on the part of CYQUEST remain unaffected by the above.
6 Hosting, Provision, Guarantee of Operational Readiness and Software Functionality
- The hosting of the application is carried out on a server maintained by CYQUEST and corresponding to the requirements of the application and is made available for use from there. This server shall be located within the European Union.
- CYQUEST guarantees an availability of the server(s) necessary for the operational readiness of the developed application(s) of 99% calculated over 12 months.
- If CYQUEST becomes aware of a possible malfunction of the software, CYQUEST will inform the Customers about the website, if necessary, and remedy the malfunction within a usual, reasonable period of time according to the type and severity of the malfunction.
- A malfunction of the software exists if the software does not fulfil the functions specified in the product description, if data processing is interrupted in an uncontrolled manner or if the software does not function properly in any other way, so that the use of the software is not possible or only possible to a limited extent.
7 Price, Invoicing
- The price for the transmission of the test link, the provision of the software-as-a-service and the right to use the TestTrainer can be found in the prices currently stated on the website.
- The Customer will receive a proper invoice via the payment service provider PayPal.
- CYQUEST is liable without limitation for damages caused by itself, its employees and vicarious agents intentionally or through gross negligence, in the case of fraudulent concealment of defects, in the case of the express assumption of a guarantee as well as for damages resulting from injury to life, body and health.
- CYQUEST shall only be liable for other damages if an obligation is violated, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner may regularly rely (cardinal obligation). The liability for damages is limited to damages that are typical and foreseeable for this type of contract. Furthermore, the amount of liability is limited to a total of the simple amount of the remuneration owed. Any liability under the Product Liability Act shall remain unaffected. Any liability of CYQUEST beyond the foregoing is excluded. In particular, CYQUEST is not liable for loss of profit, loss of savings, indirect damages and consequential damages.
- The completion of the TestTrainer does not offer any guarantee or other warranty for the successful completion of a real online assessment. Consequently, CYQUEST cannot be held responsible or liable for the success or non-success of a user.
9 Final Provisions
- The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- If the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be Hamburg. The same applies if the user does not have a general place of jurisdiction in Germany or a place of residence or if the usual place of residence is not known at the time the action is filed.
- Amendments or supplements to this contract must be made in writing, unless this contract explicitly refers to the text form for amendments or supplements. Amendments or additions to this clause must be in writing.
- Should any provision of this contract be invalid, this shall not affect the legal validity of the remaining provisions. The same shall apply in the event of a loophole in the contract.