General terms and conditions
We are pleased to welcome you to Vispato.com, the online-based whistleblowing system of Vispato GmbH (hereinafter "Vispato").
1. General, contractual partners, scope of application
1.1 The following General Terms and Conditions of Business shall apply exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code). The contractual partner in the context of the following General Terms and Conditions of Business is Vispato GmbH, Hansaallee 299, 40549 Düsseldorf, Germany (hereafter: "Vispato") and the customer. The General Terms and Conditions apply in particular to contracts for the provision and use of Vispato's online whistleblowing system (hereinafter: "Services").
1.2 The services provided by Vispato are subject exclusively to these general terms and conditions; any general terms and conditions of the customer that conflict with or deviate from these general terms and conditions will only be recognized by Vispato to the extent that Vispato has expressly agreed to them in writing. They will not be effective even if Vispato has not objected to them in individual cases. The contract language is German.
1.3 These General Terms and Conditions of Business shall apply in the version valid at the time of the conclusion of the contract or, in any case, in the version most recently communicated to the customer in text form as a framework agreement also for similar future contracts, without the need to refer to the General Terms and Conditions of Business again in each individual case.
1.4 Vispato reserves the right to change these general terms and conditions at any time. The customer will be informed of these changes in text form. If the customer does not object in writing to Vispato within 6 weeks of receipt of the notification of change, the changed General Terms and Conditions will be deemed accepted. If unforeseeable and uninfluenceable changes occur after conclusion of the contract (e.g. changes in the law), or if gaps become apparent that significantly disrupt the relationship between performance and consideration, Vispato has the right to adapt the General Terms and Conditions even without the customer's consent. The customer will also be informed of this in text form.
1.5 The assignment of claims against us to third parties is excluded. § 354 a HGB remains unaffected.
2. offer / scope of performance / conclusion of contract
2.1 The services offered by Vispato on its website or in advertisements, catalogs or brochures do not constitute an obligation to use the service. They merely represent a non-binding request to the customer to select appropriate rates from Vispato.
2.2 By registering the customer at www.vispato.com and selecting the respective tariff, the customer submits a non-binding offer to conclude a contract.
2.3 Upon receipt of this request, Vispato will inform the customer immediately by e-mail that the order has been received and send a confirmation link. This order confirmation from Vispato is not an acceptance of the order, but merely a confirmation that the order has been received.
2.4 The contract between Vispato and the customer only comes into effect when the confirmation link sent by e-mail is called up by the customer and Vispato sends the access data to the customer. Vispato reserves the right here to refuse to conclude the contract without giving reasons.
2.5 After conclusion of the contract, the customer is immediately given the opportunity to access his customer account, within which he can manage his settings and use the selected Vispato services.
2.6 If the customer does not call up the confirmation link within one week of receipt, Vispato is entitled to delete the account created by the customer.
2.7 If a certain service is temporarily unavailable, Vispato will refrain from accepting it. In this case a contract will not be concluded. In this case Vispato will inform the customer immediately and will refund any services already received without delay.
2.8 The service owed by Vispato results from the underlying contract of use. Statements and explanations made by Vispato in advertising materials and on websites are to be understood as a description of the nature of the service and not as a guarantee or assurance of a characteristic of the service.
2.9 There are no oral collateral agreements. Ancillary agreements as well as subsequent changes must be expressly recognized in writing by Vispato. This also applies to assurances and subsequent contract changes.
3.1 By registering, the customer assures that all personal and company data transmitted by him within the scope of the registration itself as well as within the account created in the process are complete and correct in terms of content. The use of pseudonyms is inadmissible.
3.2 The customer is obliged to keep the address and contact data provided during registration up to date at all times and to report any changes to Vispato immediately. The customer is also obligated to provide a permanent authorized representative contact person with an e-mail address and postal address (if different from the customer's general address) in his account created during registration. Furthermore, the customer must name in his account all persons, along with contact data, who are authorized to use the services of Vispato (hereinafter: "other authorized persons"). The additional authorized users will receive individual access data that the customer will specify in advance. Depending on the tariff, these are at least 2 additional authorized users.
3.3 The customer as well as the other persons entitled to access is responsible for the proper administration of the access data. Vispato is not liable for the misuse or loss of access data. Due to the encryption technology used, Vispato cannot restore the user's stored content if the access data is lost. If the customer becomes aware of any misuse, he must immediately notify Vispato in writing.
3.4 In accordance with the contract and the following provisions, the customer shall receive the simple, non-exclusive, non-transferable right, limited to the duration of the contract, to use the subscribed services for himself and for the contractually specified authorized users for the customer's own purposes, subject to payment of the remuneration owed and due.
4. Prices / due date of payment
4.1 The remuneration to be paid by the customer for the use of the selected tariff is specified in the respective usage contract.
4.2 All prices are exclusive of the value added tax applicable at the relevant time.
4.3 Discounts are not granted.
4.4 The remuneration is to be paid in advance for the respectively agreed reference period and the subsequent extension periods. The duration of the reference period and subsequent extension periods is specified in the Usage Agreement.
4.5 Invoices from Vispato are due for payment without deduction immediately upon receipt by the customer. The customer may pay by bank transfer or direct debit.
4.6 If the customer is in arrears with payments, Vispato is entitled to refuse to perform due services to the customer and to block the account. In such cases Vispato will notify the customer in advance and set a deadline for the elimination of the delay. In addition Vispato is entitled to charge interest on arrears at 7 percentage points above the base rate. If the customer chooses to pay by direct debit, he or she must also bear the costs arising from the direct debit being dishonored or reversed due to a lack of funds in the account. These are in particular the fees charged by the bank as well as the costs of notification.
4.7 The withholding of payments due to or the offsetting of counterclaims by the customer are only permissible if these counterclaims are undisputed or have been legally established.
4.8 Vispato is entitled to increase the remuneration for subscriptions with a written notice of three months to the end of the month, provided that after the conclusion of the contract either the necessary costs incurred for the provision of the services, in particular the costs of maintaining and further developing the technical infrastructure, or the costs for customer service and general administration - also taking into account any cost savings that may have occurred - have increased overall. These costs are to be proven to the customer upon request.
5. Start of contract and termination
5.1 Commencement of the contract is the time of the customer's consent by calling up the link in the confirmation e-mail for the use of the whistleblower system at Vispato.
5.2 The contract period depends on the selected tariff. The contract will be extended by the duration corresponding to this tariff if it is not terminated in writing to Vispato with a notice period of 14 days to the end of the contract period. It is sufficient that the notice of termination is made in the account settings.
5.3 The right to terminate the contract without notice for good cause remains unaffected. Such a reason exists in particular if:
- if the customer is in default of payment for more than two months;
- the customer repeatedly violates the provisions of these General Terms and Conditions;
- an application has been filed against the customer for the opening of insolvency proceedings and such proceedings have been opened or rejected for lack of assets.
6. Responsibility and duties of the customer
6.1 The customer is solely responsible for the use of the services, the proper processing of his data and the results achieved.
6.2 The customer is obliged to use the current version of the services as indicated in the account and provided by Vispato. Software updates are carried out automatically.
6.3 The customer must independently and at his own responsibility and expense create all the conditions necessary for the use of Vispato's services. This applies in particular to system requirements, infrastructure and the telecommunications connection between the customer and Vispato. In addition, he must ensure that files provided by third parties in a whistleblower system are checked for viruses.
6.4 The customer undertakes to use the services of Vispato exclusively for the contractually agreed purposes. Access to the services of Vispato is exclusively through the agreed channels. The customer may not circumvent, remove, switch off or otherwise disable the security measures implemented by Vispato.
6.5 The customer must adhere to appropriate technical and organizational security standards and ensure that no viruses from his systems enter Vispato's systems. The customer is also responsible for monitoring the proper use of the services covered by the contract by his employees, and in particular the employees who are also stored in his profile as additional authorized accesses. For his part he is obliged to oblige his authorized users to comply with the provisions of these GTC. The customer is liable for the use of his access to the services of Vispato under the passwords he has chosen or via his infrastructure, unless he can prove to Vispato that the use is not attributable to him.
6.6 The customer must ensure that the contractual use by Vispato of the information, data and materials provided by him/her does not infringe the rights of third parties. Before providing Vispato with corresponding information, data and materials, the customer is obliged to check whether Vispato is permitted to use such information, data and materials within the framework of the agreed services in accordance with the contract, and if necessary to provide any necessary rights of use and to obtain the consent of third parties. The customer shall indemnify Vispato against all claims by third parties that result from a violation of the aforementioned obligations. The indemnification also includes the costs of any necessary legal defense.
6.7 The customer is obliged to refrain from the following acts of use:
- to attempt to translate, decompile or disassemble the software codes of the contractual partner;
- Dissemination or reproduction of unprotected works (e.g. performing arts, music, literature, software, etc.), making them accessible through links or other uses - whether for payment or free of charge - if and to the extent that no legal permission or a consent / authorisation of the copyright holder(s) is available for this purpose;
- Use of programs, program functions or comparable technical equipment to enable the use of the account by bypassing the user interface, e.g. through scripts, robots, posting automatisms, etc.;
- to execute applications that lead to a change in the physical or logical structures of the networks used;
6.8 The customer further undertakes to observe the following provisions when using Vispato's services, in particular when setting up the whistleblowing system:
- The whistleblower system may not be used for any other purpose, i.e. it may not be used as an exchange platform for files or information that are illegal or violate applicable legal regulations
- The information on the customer's whistleblower page, which may be publicly accessible, and the description of notices in the whistleblower system, which the customer explains there for third parties, must be factual, objective and accurate. They must not infringe any patent, copyright, trademark, personal rights or other protected legal positions of third parties.
- Furthermore, the customer undertakes not to distribute the following contents via the whistleblowing system or to make them accessible to third parties in any other way:
- contents that are copied or transcribed elsewhere;
- content that is pornographic, obscene, offensive, vulgar or otherwise objectionable;
- contents that pose a security risk as carriers of viruses, Trojans or other harmful programs;
- which are discriminatory, racist, contemptuous of human rights, radical, religious, xenophobic, national socialist, pornographic or otherwise sexually degrading otherwise statements or actions of any kind that violate statutory provisions, in particular the German Criminal Code (StGB), Narcotics and Drugs Act, Youth Protection Act (JSchG), Competition Act (UWG), copyright and trademark law as well as other intellectual property and personal rights of third parties.
6.9 If the customer violates the obligations incumbent upon him or her under these GTC, Vispato is entitled to block access to the services and/or delete the customer's account and/or any content that is in violation of the contract or the law, or to change it to a permissible level, to terminate the present contractual relationship and/or to refuse to allow the customer to register again. Any claims by the customer against Vispato for such measures are excluded.
7. Performance changes and availability
7.1 Vispato reserves the right to expand, change or restrict functions as far as this serves technical progress, is necessary to prevent misuse or Vispato is obliged to do so by law. If the customer's contractual use of the service is significantly impaired by the change in the range of functions, the customer has the right to change the tariff or terminate the contract.
7.2 Vispato strives to provide its services to its customers with an availability of 99% per calendar year. Exceptions to this are
- times of unavailability due to Internet disruptions beyond Vispato's control or other circumstances beyond Vispato's control, in particular force majeure;
- times of non-availability due to planned maintenance work on the database system, which is carried out regularly;
- times due to mandatory unscheduled maintenance work required to eliminate malfunctions; the customer will be informed of this, if possible, by means of a notice on the website;
- periods of non-availability, which are based on the fact that the necessary technical prerequisites to be created by the customer for the use of the services are not given. times of non-availability, which are based on the fact that the technical prerequisites to be created by the customer for the use of the services are not given. times of non-availability, which are based on the fact that the technical prerequisites to be created by the customer for the use of the services are not given. times of non-availability, which are based on the fact that the technical prerequisites to be created by the customer for the use of the services are not given. times of non-availability, which are based on the fact that the technical prerequisites to be created by the customer for the use of the services are not given.
8.1 Vispato's liability is governed by the statutory provisions, unless the following provisions result in deviations.
8.2 Vispato is only liable in cases of intent and gross negligence. This also applies to intentional or grossly negligent conduct by Vispato's representatives and/or vicarious agents. This limitation of liability does not apply in cases of breach of fundamental contractual obligations or in cases of injury to life, limb or health or in cases of mandatory liability under the Product Liability Act.
8.3 The liability for damages is limited to the foreseeable, typically occurring damage.
8.4 Unless otherwise regulated above, liability is excluded. This applies in particular to damages that are based on causes that are not within Vispato's sphere of responsibility, such as force majeure, strikes, official measures, failure of transmission means or other disruptions.
8.5 The period of limitation is 12 months, calculated from the date of conclusion of the contract.
9. Confidentiality and data protection
9.1 Data processing is carried out in accordance with the applicable German Federal Data Protection Act (BDSG), the EU Data Protection Basic Regulation (EU-DSGVO) and the German Telemedia Act (TMG).
9.3 Insofar as the customer enters personal data of third parties in Vispato's online-based whistleblowing system, or allows such data to be entered, the customer is responsible to Vispato and ensures that this is permitted under the applicable data protection regulations.
9.4 The parties undertake to treat as confidential all confidential information which they become aware of during the execution of this contract and to use it exclusively for contractually agreed purposes and not to pass it on or exploit it to third parties. The parties commit themselves to obligate their employees and staff as well as other parties involved accordingly.
Confidential information within the meaning of this provision is any information, documents, data and particulars which are designated as such or are by their nature confidential.
10. Other; place of jurisdiction; applicable law
10.1 Should any of the above provisions be invalid, the validity of the concluded contract shall not be affected. The parties shall close a gap in the provision that has arisen due to invalidity by means of a joint agreement that comes as close as possible to the invalid provision in economic and legal terms.
10.2 If the customer is a merchant, legal entity under public law or special fund under public law, Vispato's registered office is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB.
10.3 The place of performance is also the registered office of Vispato.
10.4 German law shall apply to the conclusion and execution of all contracts. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Version 1.0, Version 11/2019