General Terms and Conditions of Use for

Feedbackstr

§ 1 General information and scope of application

(1) These General Terms and Conditions (hereinafter GTC) apply to all contracts concluded via the Feedbackstr website between Spectos GmbH, Theaterstraße 6, 01067 Dresden (hereinafter referred to as Spectos) and our customers registered with Feedbackstr (hereinafter referred to as Users; both collectively referred to as Parties or each individually as Party). Participants in the survey, or respectively, the (potential) customers, employees or suppliers etc., of the User addressed via Feedbackstr shall hereinafter be referred to as Respondents. The GTC apply regardless of whether the User is a consumer, an entrepreneur or a businessman.

(2) All agreements made between the User and Spectos in connection with the use are contained explicitly in these GTC as well as in the order confirmations and acceptance declarations submitted in text form by Spectos.

(3) The respective version of the GTC in force at the time the contract is concluded shall prevail.

(4) Spectos will not accept any divergent terms and conditions of the User. This applies even if Spectos does not explicitly object to the inclusion.

 

§ 2 Registration as a user

(1) The User’s registration is necessary for the use of Feedbackstr. Upon request, a copy of the User’s identification card must be sent to Spectos or the legal registration must be documented and evidence of the business registration as well as the VAT identification number must be provided. For the registration, the application form available on the Feedbackstr website must be filled out electronically. The User promises to provide all the required information accurately and according to the best of his knowledge and refrain from submitting misleading representations. Upon application, the User chooses a personal password.

(2) After the registration, Spectos shall set up a user account for Feedbackstr for the User. This will enable the User to make full use of the services of Spectos within the framework of the extent specified in section (3) below. Insofar as it has been contractually agreed, Spectos shall also furnish further means of access for the user account, if necessary including alternate access rights.

(3) The User receives from Spectos specific access information (username + password). The access data must be kept secret and only be made accessible to persons it has authorised to do so. The User must protect his access to Feedbackstr from unauthorised use. If the access information becomes known to unauthorised persons or the User becomes aware of unauthorised access, Spectos must be informed without delay.

(5) In the event of a change in the User’s personal information, the User shall be responsible for updating it. All changes may be undertaken online after registering on the Feedbackstr website.

(6) The User must take appropriate measures, in accordance with the current state of the art, to set up protection against viruses, phishing, and the like.

 

§ 3 Subject of the Agreement

(1) Upon registration, Spectos grants the User the various usage possibilities provided by Feedbackstr within the scope and to the extent of the Usage agreement. The User also has the option of taking advantage of other Spectos services (Additional Services) and may extend the usage possibilities. The extent of the use as well as any Additional Services to be provided by Spectos is specified by the scope of the services selected by the User and the scope of services as agreed upon by the User and Spectos.

(2) The User pays the amount of remuneration stipulated for the Usage agreement upon conclusion of the Agreement; the amount and the breakdown are shown on the Feedbackstr website. The User pays the amount of remuneration stipulated for enhanced Usage agreements (ex. “Enterprise Feedback Management”) and any agreed Additional services upon conclusion of the Agreement; the amount and the breakdown of which are the subject of individual offers created by Spectos. Payment is due immediately and must be made using one of the payment systems made available by Spectos (currently: Mastercard, Visa, American Express, invoice in the case of annual agreements and additional services).

 

§ 4 Usage

(1) The User promises to use Feedbackstr for its own purposes only. The User is not entitled to the use of Feedbackstr for the purpose of conducting surveys for third parties. Feedbackstr has not been designed for making concrete offers of merchandise or services or for the provision thereof. The User is consequently not authorised to make concrete offers of merchandise or services or to provide them using Feedbackstr.

(2) Content posted by the User or transmitted for the purpose of posting is not checked by Spectos for its legitimacy. The User is obligated to examine its posted content (data, texts, pictures/images, music etc.) for its legitimacy and use the content or make it accessible only insofar as it is in compliance with the applicable legislation. The User must ensure that the content does not infringe upon the rights of third parties – such as perhaps copyrights, trademark or other individual rights, that the content does not offend the religious and cultural concerns of other users and/or end users, is not defamatory/libellous, injurious, insulting, threatening, obscene, pornographic, liable to corrupt the young or in any other way illegal or transgresses the boundaries of decency. The User promises to distribute neither content nor technologies based on the technologies of L. Ron Hubbard. Spectos reserves the right to erase immediately and without prior notification content that violates the provisions of these GTC.

(3) The User promises to refrain from transmitting either so-called spam or junk mail via Feedbackstr.

(4) Pursuant to section 5 of the German Telemedia Act [TMG – Telemediengesetz], the User is obligated to provide the respective survey websites with its own legal notice/disclaimer. Spectos provides the technical facility for the User to comply with this requirement. In the relationship with Spectos, the User makes a commitment to comply with all other legal duties arising from the implementation of online surveys/questionnaires.

 

§ 5 Maintenance, upkeep and availability

(1) Within the scope of what is technically and economically reasonable, Spectos assumes the maintenance, management and upkeep of the Internet page where Feedbackstr is integrated.

(2) Spectos makes Feedbackstr available for the User within the framework of the current state of the art and the existing capacities. Spectos is authorised to limit the use of Feedbackstr for the required maintenance, management and upkeep of the systems or respectively, the website.

 

§ 6 Support

(1) Spectos provides support for the User during the term of the Usage agreement.

(2) Spectos shall determine the type and scope of the support – in particular the means of communication and the response time – according to the specifications and the scope of the services agreed upon, and also with reasonable discretion.

 

§ 7 Reservation of the right to make modifications

Following prior notification and in compliance with a reasonable deadline, Spectos reserves the right to modify the design or the technical structure of Feedbackstr at any time, especially when it is a question of adding or removing some functions. Spectos is also authorised to stipulate or change some of the requirements for the use, even by Respondents. In doing so, Spectos shall take the User’s interests appropriately into account.

 

§ 8 System integrity and disruption of website

(1) In connection with the use of the website, the User may not make use of any mechanisms, software or other scripts which may compromise the functionality of the entire Spectos website. The User is not permitted to block, overwrite or modify content generated by Spectos or in any other way interfere with Feedbackstr.

(2) The User may not undertake measures that may result in an unreasonable or excessive load on the technical infrastructure.

(3) The content stored on the website may not be copied or distributed nor used in any other fashion or reproduced without the prior consent of the rights holder. This also applies to copying by means of “robot/crawler” search engine technologies or other automatic mechanisms.

 

§ 9 Brands, distinguishing marks and logos / Market research

(1) Spectos is entitled to use the User’s name, brand name, distinguishing marks and logos for promotional purposes for Feedbackstr, unless the User objects to the use. In this case, the Parties shall endeavour to arrive at an arrangement that will allow Spectos to name the User as a reference.

(2) Spectos is authorised to use anonymised user information in the preparation of statistical figures and trend analyses as well as for quality assurance and market research and make this information available to third parties – including advertising customers – for demoscopic purposes.

 

§ 10 Data storage/backup

Spectos does not provide data backup for the content posted by the User and the messages received by the User. The User himself is responsible for archiving on a storage medium independent of Spectos the information which is accessible and/or retrievable on the website and which is stored by Spectos and is required for purposes of the preservation of evidence, for book and record keeping and the like.

 

§ 11 Data protection/privacy

(1) Spectos stores and processes the User’s personal data in compliance with the applicable legal provisions and exclusively for the fulfilment of contracts. The data obtained from the User (for example, name, address, date of birth, email address, telephone number) are collected exclusively in connection with the User and are processed and used by Spectos to the extent that they are needed for the justification, execution, modification or termination of the contracts. The User may at any time object to the processing of its personal data. However, this may lead to a termination of the contractual relationships.

(2) Insofar as the services of Spectos involve telecommunications services, the following supplementary provisions apply: for the detection, control and elimination of disturbances and faults in the telecommunications systems, Spectos as well as its cooperating telecommunications enterprises shall be authorised to collect, process and use the User’s basic and traffic/connection data, e.g., the destination number und identification, the beginning and end of the connection including the time of day, to the extent necessary in individual cases. Provided that the circumstances require it, Spectos and its cooperating telecommunications enterprises shall be entitled to the same right as long as it is necessary for the discovery as well as the prevention of service acquisition under false pretences and other illegal use of telecommunications networks and services.

(3) In accordance with the statutory data protection regulations, as a rule the collecting and processing of the Respondents’ personal data is permissible only with the Respondents’ consent. The User shall therefore obtain the relevant Respondents’ permission before gathering and processing their data. Spectos shall integrate a function to that effect in Feedbackstr.

(4) Spectos collects and processes the Respondents’ personal data exclusively for and at the request of the User. The User shall act as the responsible party within the meaning of section 3 paragraph 7 of the German Federal Data Protection Act toward the Respondents (data subjects within the meaning of section 3 paragraph 1 of the German Federal Data Protection Act / BDSG-Bundesdatenschutzgesetz). The following regulations stipulated in section 12 shall apply for processing the contract data.

 

§ 12 Contract data processing

(1) Spectos shall gather, process and use personal data for the User only to the extent defined as follows, in the manner defined as follows and for the purposes defined as follows:

(2) If the details specified in paragraph (1) above are taken into consideration, the following types or categories of data are the subject matter for the acquisition, processing and use of personal data:

(3) The number of the data subjects affected by the handling of the personal data within the scope of this contract includes all Respondents.

(4) Territory

The acquisition, the processing and the use of the data take place exclusively within the territory of the Federal Republic of Germany, in a Member State of the European Union or in another State which is a contracting party to the Agreement on the European Economic Area. Any relocation into a third/foreign country requires the User’s prior written consent and may only be undertaken if the specific requirements of sections 4b and 4c of the German Federal Data Protection Act have been fulfilled.

(5) Technical and organisational measures

Spectos shall record the implementation of the technical and organisational measures set out during the preliminary stages of the contract award process before beginning the processing, especially in regard to the concrete order execution, and present it to the User for review. In the event of the User’s acceptance, the documented measures become the basis for the order. If an audit performed by the User results in the need for adaptation or adjustment regarding the technical and/or organisational measures, it must be implemented by mutual agreement.

The technical and organisational measures are subject to technical advances and further development. In this respect it is permitted for Spectos to suggest alternate adequate measures. Provided that the measures specified do not fall short of the safety level, these alternate measures may be implemented. Significant modifications must be documented. Spectos shall provide the specifications pursuant to section 4g paragraph 2 clause 1 of the German Federal Data Protection Act to the User upon request.

(6) Correction, blocking and erasure of data

Spectos shall correct, erase or block the data that are processed for the order only in accordance with the User’s instructions. If a data subject turns directly to Spectos for the purpose of having its data corrected or erased, Spectos shall forward this request to the User without delay. The examination of the request is exclusively the User’s responsibility.

(7) Other duties

In addition to abiding by the regulations of this contract, Spectos assumes the following duties pursuant to section 11 paragraph 4 of the German Federal Data Protection Act:

(a) Appointment in writing – inasmuch as prescribed by law – of a data protection commissioner who can perform his activity pursuant to sections 4f and 4g of the German Federal Data Protection Act. Spectos shall provide the User with the contact data so that this person can be contacted directly.

(b) Maintenance of data secrecy pursuant to section 5 of the German Federal Data Protection Act. All persons allowed to access the User’s personal data must be obliged to comply with data secrecy and be instructed regarding the specific data protection obligations arising from this order as well as regarding any existing directives or purpose limitations.

(c) The implementation of and compliance with all technical and organisational measures necessary for this order pursuant to section  9 of the German Federal Data Protection Act.

(d) Informing the User immediately of any control activities and measures undertaken by the supervisory authority pursuant to section 38 of the German Federal Data Protection Act. This also applies if a responsible authority pursuant to sections 43 and 44 of the German Federal Data Protection Act is established at Spectos.

(e) Implementing the supervision of orders by means of regular inspections to be carried out by Spectos regarding the contract execution or fulfilment, especially the compliance with regulations and measures and making any modifications that may be necessary for executing the order.

(f) Ensuring traceability for the User with respect to the technical and organisational measures taken. In this respect, Spectos may also submit current attestations or reports by independent authorities (e. g., public auditors/Wirtschaftsprüfer, internal audit/review, a data protection commissioner, IT security department) or suitable certification through IT security or data protection audit (e. g., basic IT security in accordance with the standards of the German Federal Office for Information Security / BSI – Bundesamt für die Sicherheit in der Informationstechnik).

(8) Sub-contracting

If the processing or use of the User’s personal data entails the need for sub-contractors, this shall be permissible under the following prerequisites:

Third-party services used by Spectos as supplementary work for supporting the execution of the order are not considered as sub-contracted services. This includes, for example, telecommunication services, maintenance and user service, cleaning personnel, auditors or the disposal of data storage devices. However, for guaranteeing the protection and the security of the User’s data, Spectos is obligated to enter into appropriate contractual agreements in accordance with the law as well as to take control measures also where externally assigned supplementary work is concerned.

(9) The User has the right to conduct the supervision of orders as specified in No. 6 of the Appendix to section 9 of the German Federal Data Protection Act in consultation with Spectos, or in special cases to have it undertaken by designated auditors. The User has the right to use random sampling as a rule with due notice provided, to make sure that Spectos, in its business operations, is in conformity with this Agreement. Spectos promises to provide, upon the User’s request, all information necessary for meeting its obligations with respect to the supervision of orders and make the respective proof available for inspection.

(10) With respect to the User’s control obligations pursuant to section 11 paragraph 2 clause 4 of the German Federal Data Protection Act, before beginning the data processing and during the term of the order, Spectos shall ensure that the User is able to ascertain the compliance with the stipulated technical and organisational measures. For this purpose, Spectos shall provide evidence for the User upon request that the technical and organisational measures have been implemented pursuant to section 9 of the German Federal Data Protection Act. The evidence for the implementation of these measures, which do not pertain to the concrete order only, may be presented in the form of current attestations or reports by independent authorities (e. g., public auditors/Wirtschaftsprüfer, internal audit/review, a data protection commissioner, IT security department) or suitable certification through IT security or data protection audit (e. g., basic IT security in accordance with the standards of the German Federal Office for Information Security / BSI).

(11) In all cases, Spectos shall submit a report to the User in the event that Spectos or persons employed by Spectos have committed violations of the regulations for the protection of the User’s personal data or of the guidelines stipulated in the order.

(12) Spectos is aware that information obligations may exist pursuant to section 42a of the German Federal Data Protection Act in cases of the non-delivery/loss, unlawful transfer/transmission or unauthorised acquisition of personal data. For that reason, these incidents must be reported to the User immediately and without consideration of the causes. This also applies in the case of major disruptions of the operational process, suspected other violations of the regulations for the protection of personal data or other irregularities in the handling of the User’s personal data. In consultation with the User, Spectos must take appropriate measures for securing the data as well as for minimising any adverse consequences for the data subjects. If the User is affected by obligations pursuant to section 42a of the German Federal Data Protection Act, it is Spectos’ duty to provide support.

(13) It is agreed that the data are to be handled exclusively within the framework of the stipulated arrangements and according to the User’s instructions pursuant to section 11 paragraph 3 clause 1 of the German Federal Data Protection Act. Within the scope of the order description contained in this Agreement, the extensive right to issue instructions is reserved for the User regarding the type, scope and procedure of the data processing and this right may be put into concrete terms with the issuing of individual instructions. Modifications of the subject of the processing and procedural changes must be jointly agreed upon and documented. Spectos may furnish particulars to third parties or to the data subjects only with the User’s prior written permission.

(14) The User shall issue all instructions in writing or by email (in text form). Spectos shall not use the data for any other purposes and is, above all, not authorised to pass them on to third parties. Copies and duplicates may not be made without the User’s knowledge. Backup copies that are required for the safeguarding of the proper data processing as well as data necessary in respect to the statutory duty to keep and retain records represent exceptions from this provision.

(15) Spectos is obligated to inform the User without delay pursuant to section 11 paragraph 3 clause 2 of the German Federal Data Protection Act if and when Spectos is of the opinion that an instruction issued by the User violates statutory data protection regulations. Spectos is entitled to discontinue the implementation of the directive in question until it has been confirmed or amended by the User’s responsible officer.

(16) There is agreement that once the contractual work is completed or if requested earlier by the User, Spectos shall hand over to the User all documents acquired, all results generated from the processing and usage as well as all stored data that are connected with the contractual relationship, or delete the material in accordance with data protection regulations after obtaining the written consent. The same applies for test material and scrap material. The record of the deletion must be submitted to the User upon request.

(17) Spectos is authorised to retain any documentation which serves the purpose of providing evidence for the proper data processing in accordance with the order/contract beyond the end of the contract, depending on the respective storage periods. Upon completion of the contract, Spectos may hand it over to the User for exoneration purposes.

 

§ 13 Period of validity and termination

(1) As long as no time limit is placed on an offer made by Spectos for the Usage agreement, it is effective for an indefinite period and may be terminated by the Parties under observance of the proper notice period to the end of the month. Should the user terminate the agreement, the user is not entitled to reimbursement of any amounts that have already been paid.

(2) Additional services have a fixed, contractually agreed duration and therefore do not need to be terminated.

(3) The Parties are authorised to terminate the contracts for good cause without observing a notice period. A good cause exists for Spectos in particular if there is a repeated violation of the procedural obligations within the meaning of sections 4 and 8.

(4) If the contract on the side of the User is concluded involving several persons, Spectos is already entitled to termination when the circumstances mentioned arise particular to the person of one contracting party.

(5) The termination for good cause must be declared with a notice period of 2 weeks. All terminations must be declared in text form.

(5) In the event of termination for good cause, Spectos is authorised to block the User’s access immediately. All survey data may be permanently erased one week after the termination.

 

§ 14 Liability

(1) Insofar as nothing else has been stipulated in these GTC, the Parties are liable for intent and gross negligence only. For harm to life, limb and health, the Parties are liable even in the case of simple negligence.

(2) The User indemnifies Spectos against all disputes and the related costs and claims by third parties, which these may assert against Spectos based on a violation of their rights by the User for which the User is responsible. The User hereby especially indemnifies Spectos against any claims by third parties, which these may assert against Spectos for the protection of third parties because of a violation of the legal provisions governing competition, proprietary rights, trademark rights and/or data protection rights. If third parties assert claims against Spectos because of a violation of the law by the User within the meaning of this paragraph, the User shall also bear the costs for the legal defence needed by Spectos including all court and lawyers’ fees at the legally applicable rate. The User hereby also assumes all other expenses that arise from the violation, in particular the expenses for eliminating the offence. In the event of a claim, the User is obligated to provide Spectos immediately, truthfully and completely with all the information necessary for the review of the claim and for the defence. This also applies if the offence was committed based on simple negligence. Any further claims by Spectos remain unaffected.

(3) Spectos is not liable for any business relationships created between the User and third parties via Feedbackstr and claims that may arise therefrom. This also applies in respect to the fulfilment or the guarantee for products, services or credit notes/vouchers/coupons provided for third parties via Feedbackstr.

 

§ 15 Confidentiality / Nondisclosure

The Parties mutually commit themselves to maintain secrecy towards third parties regarding all business processes of which they become aware within the framework of the collaboration, in particular regarding business and company secrets. The confidentiality obligation shall continue even after the contracts have been completed. If other confidentiality arrangements exist between the Parties, the regulations of these GTC shall apply in addition.

 

§ 16 Place of jurisdiction, choice of law, place of performance.

(1) The place of performance is Dresden.

(2) The exclusive court of jurisdiction for all disputes arising out of or in connection with the contracts – to the extent permitted by law – is Dresden.

(3) All contracts are subject to German law with the exclusion of the UN Convention on Contracts for the International Sale of Goods.

 

§ 17 Miscellaneous provisions

(1) All agreements reached between the Parties in relation to the use of Feedbackstr are contained in these GTC, the descriptions of services in the scope of usage agreements, and in the individual offers made by Spectos. There are also no additional agreements and commitments.

(2) Should a provision of this Agreement be or become ineffective or unenforceable, the effectiveness of the remaining provisions shall remain unaffected thereby. Instead of the ineffective provision, a provision shall apply that, within the scope of what is possible, comes closest to what the Parties wanted, taking into account economic points of view. The same shall apply in the event that potential amendments to the Agreement become necessary. Section 139 of the German Civil Code (BGB – Bürgerliches Gesetzbuch) shall not apply.

 

Status date:  11.9.2015