Terms and Conditions
These General Terms and Conditions (hereinafter “GTC”) govern the contractual relationship between Certado GmbH, Augustusstr. 8, 86343 Königsbrunn, Germany (hereinafter “Certado”) and the user of the HSE software PSA-Audit (hereinafter “Customer”).
1. Scope of Application of the GTC
1.1 The subject of the contractual relationship is the use of the online-based HSE software PSA-Audit (hereinafter “PSA-Audit”) and the websites, functions and services offered within the scope of PSA-Audit, regardless of the domains used.
1.2 This agreement shall apply from the first day on which Customer uses PSA-Audit. Any previous contractual terms and conditions between Certado and Customer shall cease to be valid upon the coming into effect of these GTC.
1.3 Terms and conditions of Customer that deviate from these GTC are not recognized unless Certado expressly agrees to their validity in writing. This also applies if Certado does not expressly object to deviating terms and conditions.
2 Conclusion and Content of the Contract
2.1 The contractual relationship between Customer and Certado comes into effect upon completion of the registration process. The registration process is completed upon confirmation of the registration by calling the activation link sent by email.
2.2 Certado may terminate the contractual relationship within one week if Customer is found to be not creditworthy after checking with recognized credit check providers.
2.3 Within the framework of the conclusion of the contract, Customer will choose one of the tariffs offered by Certado. The respective scope of services of PSA-Audit as well as the amount of the remuneration to be paid by Customer result from the respective tariff description. In the case of fee-based tariffs, Customer also decides on a payment interval, which is also the contract term.
2.4 The tariff “PSA-Audit On-Premise” is not covered by these GTC and is regulated in a separate contract.
3. Remuneration and Invoice
3.1 The remuneration shall be paid monthly in advance. It shall be net, plus statutory value added tax at the rate applicable on the date of invoicing.
3.2 Certado reserves the right to change the amount of the remuneration at any time. In the case of current contracts, the change will only take place at the beginning of the following contract period.
3.3 Customer may settle the remuneration by means of the payment options offered by Certado.
3.4 The deadline for the sending of advance notices by Certado to Customer under the SEPA Direct Debit Scheme is one day.
3.5 Invoices shall be provided to Customer electronically up to five days prior to the booking of the remuneration or in case of tariff change.
3.6 Vouchers issued by Certado can be credited against the tariff price accordingly within the scope of their validity.
3.7 If an invoice cannot be collected, Customer shall bear all resulting costs. This includes in particular bank charges in connection with the return of direct debits and comparable charges to the extent that Customer is responsible for the event triggering the costs. Certado may send payment reminders to Customer electronically.
3.8 If Customer defaults on payments, a first reminder will be sent seven days after the due date of the invoice without incurring a reminder fee. If payment continues to be outstanding, a second reminder will be sent ten days later and a reminder fee of EUR 20.00 will be charged. If no payment is received within seven days of the second reminder being sent, access to the application will be temporarily blocked. Access to the application will be released again upon receipt of payment, unless Certado or Customer has already terminated the contract.
3.9 Offsetting shall only be possible with claims already recognized by the other contracting party or established by a court of law, unless these are claims for main performance and defects. A right of retention may only be asserted for claims arising from the respective contract.
4. Obligations of the Customer
4.1 Customer warrants that all data transmitted by him regarding his person and, if applicable, his company are true and that all transmitted data and content are legally permissible and free of third-party rights. The use of pseudonyms is not permitted. Customer may not impersonate other persons or other companies or otherwise deceive about his identity.
4.2 During the registration process, a customer account is created for Customer, within which Customer can manage his settings and access the services of PSA-Audit.
4.3 In case of incomplete registration Certado is entitled to delete the customer account within one week.
4.4 The address and contact data of Customer must always be kept up to date. Disadvantages that arise for Customer due to incorrect information are at Customer’s own expense. Disadvantages that arise for Certado due to incorrect information are at Customer’s expense if the incorrect information lies within his area of responsibility.
4.5 Customer is responsible for exercising the greatest possible care when using his access data and for taking every measure to ensure the confidential and secure handling of the data and to prevent their disclosure to third parties. Customer is responsible for the misuse of access data if he cannot demonstrate and prove that this was not based on his fault. Customer is obliged to inform Certado immediately if there is reason to suspect that a third party has knowledge of access data and/or is misusing a customer account.
4.6 Insofar as claims are made against Certado due to illegal content or other violations of the law for which Customer is responsible, Customer indemnifies Certado upon first request and supports Certado in defending the claims. The indemnification includes the necessary legal costs.
5. Authorization of Use
5.1 Certado points out that Customer may only use the service for the individual contractual purposes. Transfer to third parties against payment or free of charge is not permitted.
5.2 Customer may only use PSA-Audit via the input masks and interfaces provided.
5.3 Actions that are likely to impair the functionality of Certado’s services, software and infrastructure (e.g. scripts, robots, crawlers) are prohibited. In particular, an excessive load that exceeds the regular usage intensity and frequency to be expected during normal use of the services and interfaces is prohibited (e.g. software that permanently generates unnecessary accesses via Certado’s interfaces due to technical errors).
5.4 Certado reserves the right to restrict the use of PSA-Audit, to remove content or to issue notices of termination to Customer, if Customer violates these GTC or legal regulations and the corresponding measure is objectively justified.
6. Tariff Changes and Termination
6.1 Unless otherwise agreed, contracts shall be concluded for an indefinite period. Such contracts may be terminated by either party with 14 days’ notice to the end of the month, but no earlier than the expiry of a contractually agreed minimum term. The termination shall be made by email to the address [email protected].
6.2 Customer may change to a higher tariff at any time and immediately use its services (referred to as “upgrade”). The premiums already paid under the previous tariff will be offset when the new tariff is invoiced.
6.3 The change to a lower tariff (referred to as “downgrade”) is only possible after expiration of the respective contract term. Furthermore, a downgrade is only possible if the number of Customer’s data does not exceed the data quota of the lower tariff and no functions are used which are not offered in the lower tariff. Customer may have to delete some data (e.g. number of PSAs, inspector accesses). The downgrade is valid from the day of the change.
6.4 Cancellation or downgrade before the expiry of a payment interval shall not entitle Customer to a refund of the remuneration paid in advance.
6.5 Both parties to the contract reserve the right to terminate the contract prematurely for cause. Extraordinary termination shall be permissible in particular if Customer defaults on its payment obligations for a period of two months. If necessary, the extraordinary termination shall be preceded by a warning of the objectionable behavior.
6.6 It is Customer’s responsibility to back up his data before the end of the contract in the event of termination.
7. Performance Changes and Warranty
7.1 The scope of the services offered by Certado, the user accounts and their technical design result from the current technical status of PSA-Audit and the service description at the time of conclusion of the contract.
7.2 Certado reserves the right to extend, change or restrict functions, insofar as this serves technical progress, is necessary to prevent misuse, or Certado is obliged to do so due to legal regulations. If the contractual use of PSA-Audit by Customer is not only insignificantly impaired by the change in the scope of functions, Customer has the right to adjust the fees or to terminate the contract.
7.3 Defects must be reported and notified by Customer immediately, at the latest within 7 days, by email to [email protected].
7.4 Certado remedies defects by rectification. Only if this fails or is impossible can Customer, after setting and expiry of a rectification period of at least two weeks, demand a reduction or assert a right of withdrawal. All claims for defects of Customer are subject to a limitation period of one year. The relevant point in time for the notification, complaint and limitation of defects is the point in time from which Customer had knowledge of the defect or should have had knowledge without gross negligence.
8.1 Customer acknowledges that a 100% availability of PSA-Audit cannot be realized technically. However, Certado shall endeavor to keep PSA-Audit available as constantly as possible and assures at least 96% availability on an annual average in accordance with the following restrictions in this section.
8.2 Certado cannot guarantee the accessibility of PSA-Audit at times when it cannot be accessed due to technical or other problems beyond Certado’s control (force majeure, fault of third parties, necessary maintenance, disruptions of Customer’s IT infrastructure or internet access, etc.). If the security of the network operation or the maintenance of the network integrity is endangered due to reasons beyond Certado’s control, Certado may temporarily restrict access to PSA-Audit as required.
8.3 Foreseeable failures due to maintenance work shall be communicated to Customer in due time and within a reasonable period of time in advance. Claims cannot be derived in this respect.
8.4 Certado performs daily backups of the data files. Via a restore procedure, Certado may perform the restore of Customer Data upon Customer’s express request.
8.5 The client-side connection to the Internet is the responsibility of Customer. This is not part of the SaaS scope of services.
9.1 Certado is liable for damages in case of intent and gross negligence.
9.2 In case of simple negligence Certado is only liable for damages resulting from injury to life, body or health as well as for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the fulfillment of which the contractual partner regularly relies and may rely), in which case Certado’s liability is limited to the amount corresponding to the service fees up to a maximum of six months.
9.3 Data backups of the data collected with PSA-Audit are performed on a regular basis. Certado expressly disclaims any liability for the backup and availability of the entrusted data and services.
9.4 These limitations of liability do not apply if Certado has fraudulently concealed a defect or guaranteed its absence. The limitations of liability also do not apply to claims under the Product Liability Act.
10. Amendment of the GTC
10.1 Certado reserves the right to change the GTC at any time with effect for the future. The amendment of essential regulations that affect the contractual balance of Customers to Certado will only take place in the presence of valid and objective reasons, in particular of a legal, technical and business nature.
10.2 Certado will notify Customer of the amended GTC at least in text form so that Customer has at least two weeks to object to the amendment. In the event of an objection, Certado can determine whether the previous GTC remain valid in the contractual relationship with Customer or Customer is given the right to terminate. If Customer does not object to the amended terms within the objection period, they are deemed accepted.
11. Confidentiality and Data Protection
11.1 The protection of Customer Data has top priority for Certado and information and disclosure of Customer Data to third parties will be prevented to the extent legally possible. This applies in particular to non-mandatory requests from authorities.
11.2 The contracting parties undertake to treat all confidential information of which they become aware during the performance of this contract as confidential and to use it only for contractually agreed purposes in accordance with the data protection requirements. The contracting parties shall oblige their employees, freelancers and other companies (independent and affiliated) involved by them accordingly.
11.3 Confidential information within the meaning of this provision shall be information, documents, details and data which are designated as such or which by their nature are to be regarded as confidential.
11.4 Customer may conclude a commissioned data processing agreement within the meaning of the German Federal Data Protection Act (Bundesdatenschutzgesetz) as part of the contract with Certado.
11.5 The rights and obligations under this section on confidentiality shall not be affected by any termination of this Agreement.
13. Final Provisions
13.1 German law shall apply to this contract.
13.2 The exclusive place of jurisdiction for both contracting parties shall be Königsbrunn, Germany.
13.3 If individual provisions of this contract are or become invalid in whole or in part, or if there is a gap in the contract, this shall not affect the validity of the remaining provisions. In place of the invalid provision or to fill the gap, an appropriate provision shall be made which, as far as legally possible, comes as close as possible to what the contracting parties intended or would have intended according to the sense and purpose of this contract if they had considered the point.