General Terms and Conditions For the usage of the Whistleblowing Solution of SECJUR GmbH

Status: 25.04.2022

1.    Introduction

1.1.     The Conditions in this document govern the contractual terms and conditions for the Licensee's use of the Licensors Whistleblowing Solution.

1.2.     The Solution is a "Software as a Service" (SaaS), which is operated via a web-based interface and enables the Licensee and the Licensee's employees or business partners to communicate with a whistle-blower via the Solution without using any software other than an Internet browser on the computers to access the Solution.

2.    Definitions2.1.    "Additional services" are the services that the Licensor provides to Licensees in addition to the Packages against payment with the booking.

2.2.    "Admin-Portal" means the area of the Solution where Licensee's employees can view or edit notices and adapt the Solution to the specific requirements of the Company.

2.3.    "Conditions" means the conditions contained in this document.

2.4.    "Licence fee" means the fee paid by the Licensee for the Solution usage right during a Licence period.

2.5.    "Licence period" means the period during which the Licensee acquires the Solution usage right by paying the Licence fee. Each Licence period runs for 24 months. At the end of each Licence period a new Licence period shall automatically commence unless this agreement has been terminated in accordance with Section III.D. The first License period starts on the day the Licensee has paid the first License fee.

2.6.    "Licensee" means the company that has acquired the Solution usage right by paying the Licence fee.

2.7.    “Licensor” means the German Company secjur GmbH with its office headquarter in Falkensteiner Ufer 40, 22587 Hamburg

2.8.    "Package" means the type of subscription. Packages vary according to the following parameters: maximum number of employees, maximum number of languages and maximum number of users. The Package is initially selected by the Licensor and can be changed by the Licensee for the future during the subscription period (an upgrade is always possible, a downgrade only after the License period has expired). Insofar a Package contains a certain amount of hours of case handling and these hours are not used or not used fully in a month, it is not possible to transfer them to the following month.

2.9.    "Party" or "Parties" means the parties to this agreement, namely Licensee and the Licensor, who are subject to these Conditions and the rights and obligations described herein.

2.10.    "Service" are the services that the Licensor provides to the Licensee by providing Solution usage rights.

2.11.    "Services" means the section of the Solution's Admin-Portal where Licensee can view its currently valid Package, change the Package, book Additional services, etc.

2.12.    "Settings" means the section in the Administrator portal of the Solution where the Licensee can enter information about his current number of employees and contact details.

2.13.    "Solution" means the Licensors application for which Solution usage rights are granted to Licensee under these Conditions.

2.14.    "Solution usage right" means the right of the Licensee to use the Solution in accordance with the Conditions.

2.15.    "Termination of agreement" is the time from which the Licensor ceases to provide the Service to the Licensee.

2.16.    "Update" refers to improvements and functional enhancements within a version and is installed as software updates. The numbering changes only at the rear positions.

2.17.    "Usage Agreement" is the agreement between the Licensor and the Licensee regarding the use of the Solution.

3.    General conditions

3.1.    Confidentiality

3.1.1.    The Licensor is not entitled to pass on confidential information received from the Licensee (both orally and in writing) to third parties.

3.1.2.    The Licensee may not disclose any confidential information (whether oral or written) received from the Licensor to any third party (including information regarding the use of the Solution).

3.1.3.    The licensee is not entitled to use the knowledge obtained about the Solution to design and/or create a similar solution himself or through third parties.

3.1.4.    The Licensor is entitled to publish, e.g. in a reference list, that the Licensee belongs to the customer portfolio of the Licensor.

3.2.    Information on Licensees; notifications

3.2.1.    It is the Licensee's responsibility to maintain the information about his settings, e.g. about the company, number of employees, contact information, in the "Services" section of the Admin-Portal.

3.2.2.    All notifications, messages etc. are sent to the e-mail address registered in the “Settings” section of the Admin-Portal.

3.3.    Liability

Licensor’s liability is governed according to section 5 § 5 of the Allgemeine Geschäftsbedingungen of secjur.

3.4. Termination

3.4.1.    The Service will be provided continuously to the Licensee until the Termination of agreement by the Licensor. The Licensor is entitled to terminate the Service with a notice period of 3 months to the end of the Licence Period.

3.4.2.    In addition, the Licensor may terminate the Service immediately and without further notice at any time if Licensee's use of the Solution violates the provisions of Section IV.A of these Conditions.

3.4.3.    The Licensee may cancel the Service at any time by logging out in the "Services" section of the Admin-Portal. The Termination of agreement becomes effective at the end of the last day of the current License period.

3.4.4.    If the Licensee has not paid the Licence fee 30 days after the start of a Licence period, the Licensor is entitled to pause the Service until payment is received. During this time, notices from outside may be received, but the Licensee has no access to these receipts. If the Licensee does not pay the Licence fee within further 15 days even after a reminder, the Licensor is entitled to cancel the Service and delete all data stored in the Solution (see Section IV.D.7).

3.4.5.    A prepaid Licence fee is not refundable to the Licensee.

3.4.6.    The Licensor is entitled to delete the Licensee's Solution and the data stored in the Solution after the Service has been provided within the scope of the GDPR.

3.4.7.    To the extent that the Conditions state that the agreement shall expire, end, etc., the Parties agree that the provisions in Sections III.A., III.C., and V. of these Conditions shall continue to apply after the expiry of the term.

3.4.8.    It is possible for the Licensee to export the data contained in the Solution. If the Licensee wishes to export data from the Solution in case of an imminent Termination of agreement, the Licensee must perform the data export at the latest on the last day of the Licence period. If the Licensee does not carry out the data export in time, the data will be deleted after 6 months at the latest and the export of the data is no longer possible.

3.5    Breach of duty

3.5.1.    Either Party may invoke a breach if the other Party fails to fulfil its obligations under these Conditions. However, before being entitled to invoke an infringement, the Party invoking the infringement must give the defaulting Party a period of 7 working days to remedy the infringement. The notification must describe which obligations are considered to have been breached.

3.5.2.    If the infringement is substantial, the Party invoking it may terminate this agreement. In this case, the notice must state that the Party invoking it intends to terminate the Service.

3.5.3.    A breach of payment of the Licence fee by the Licensee is described in Section III.D.4.

4.    Rights of the Licensee

4.1.    Scope of use of the Solution

4.1.1.    The Solution can only be used for whistleblowing reports and case management via internal whistleblowing solutions. An internal whistleblowing solution means that only employees of any kind, service providers and other business partners, customers and external consultants (e.g. lawyers and accountants) can submit reports to the Solution.

4.1.2.    The Licensee is only entitled to use the Solution in the intended sense, i.e. as a reporting platform for whistleblowing cases. The Licensee may not use the Solution for criminal purposes (e.g. drug trafficking, distribution of pornography, etc.) or otherwise violate any applicable legal regulation.

4.1.3.    In order for the Licensee to use the Service, the Licensee must observe the limits of the maximum number of employees provided for in the Package, which the Licensee has indicated in the "Settings" section of the Admin-Portal as being employed by him/her at the time of registration (headcount of employees, not full-time equivalent). The Licensee is obliged to record any change in the number of employees within the meaning of these Conditions that is not only temporary by more than 10% during the course of a Licence period in the "Settings" section of the Solution Admin-Portal.

4.1.4.    The Licensor has the right to investigate whether the restrictions on the use of the Solution are respected. The Licensor is entitled to terminate the Service without notice in the event of non-compliance with the provisions in this Section (see Section III.D.2.).

4.2.    License

4.2.1.    The Usage Agreement grants the Licensee a non-exclusive licence to use the Solution. The licence is subject to the restrictions and Conditions set out in this agreement.

4.2.2.    The intellectual property rights not transferred to the Licensee in any way.

4.2.3.    The Licensor compensates the Licensee for any claims of third parties in case of violation of their rights.

4.3.    Data

4.3.1.    All data of the Licensee contained in the Solution is the property of the Licensee.

4.3.2.    The Licensee is responsible for maintaining and updating the editable texts in the Solution.

4.3.3.    Both the Licensee and the Licensor are entitled to transfer rights and obligations under these Conditions if the reason is a change in ownership structure.

4.3.4.    The Licensor is entitled to send e-mail notifications about the Solution to the Licensee, e.g. status information, notifications, newsletters and information about new functionalities.

4.4.    Licence fee, payments, and invoices

4.4.1.    The Licensee pays the Licensor a Licence fee for the use of the Solution.

4.4.2.    Payments made by the Licensee are made on account by bank transfer to the Licensor.

4.4.3.    Payments are to be made in euros.

4.4.4.    If the Licensee does not pay the recurring License fee, the Licensee's access to the Admin-Portal will be blocked after a written reminder 30 days after the start of the new License period. If the Licensee has not paid the Licence fee within further 7 days, a second reminder e-mail will be sent. If the Licensee has not paid the Licence fee 45 days after the start of a Licence period, the Licensor is entitled to cancel the Service and delete the data stored in the Solution.

4.4.5.    The Licence fees are always invoiced plus the applicable statutory VAT.

4.5.    Package change

4.5.1.    Within a current License period it is not possible to reduce the current Package to another Package with a lower Licence fee.

4.5.2.    The Licensee may update the Package to another Package with a higher License fee at any time in the "Services" section of the Admin-Portal

4.5.3.    When the Licensee upgrades a Package, the benefits of a Package change take effect immediately. Only the difference between the new higher Package price and the previous Package fee will be invoiced.

4.6.    Support

4.6.1.    Each relevant page in the Admin-Portal of the Solution contains additional information on the use of the respective functionalities at the appropriate places.

4.6.2.    In addition, there is a free support service which can be requested by e-mail at service@hinweisgeberloesung.eu. Telephone support is also available at the telephone number given to the Licensee with the initialisation e-mail at the times specified.

4.7.    Use and operation

4.7.1.    Immediately after payment of the first License fee, the Licensee will receive an initialization e-mail to activate the Solution. The Solution can only be used after the Licensee has activated the Solution.

4.7.2.    The initialization e-mail contains information required to reset the passwords of an administrator user when all administrator users have forgotten their passwords and therefore cannot log in to the Admin-Portal of the Solution. It is very important that the Licensee keeps the initialisation e-mail in an appropriate manner to ensure that it is not lost or destroyed and is not disclosed to unauthorised persons.

4.7.3.    If a supervisory authority - in accordance with a statutory provision - lawfully requests access to the Licensee's data in the Solution, the Licensee is obliged to cooperate to the best of his ability in the transfer of the data to the authority.

4.8.    Availability of the Solution

4.8.1.    The solution is updated and improved every year with about three to four version updates. The most important version updates are carried out during the night (from 22.00 CET/CEST). The downtime of each major update depends on the content of the version update. Usually the downtime is not more than 60 minutes. All major version updates are announced by the Licensor at least 7 days before the release date to the Licensees administrator users who are stored in the Solution.

4.8.2.    Every year a number of smaller Updates/patches are released. The downtime of these individual minor Updates/patches is not noticeable to the Licensee. The implementation of minor Updates/patches is not communicated in advance.

4.8.3.    The Licensor ensures that the uptime is at least 95%. The availability percentage is calculated per calendar quarter.

4.9.    Further development and correction of errors

4.9.1.    The Licensor is continuously developing the Solution and adding new functionalities. The Licensor is inspired to develop new functionalities through a continuous general dialogue with the users of the Solution. The Licensor prioritises to what extent and in what order new functionalities are implemented.

4.9.2.    The correction of significant errors begins within 12 normal working hours (CET/CEST) after the error has occurred at the Licensor. Troubleshooting will continue without undue delay until the error is corrected.

4.9.3.    The Licensee may not invoke the violation of a serious error while the Licensor is correcting the error, provided that the Licensor corrects the error within 72 hours from the time the error is reported to the Licensor.

4.9.4.    Insignificant errors will be corrected in a small update/patch as quickly as possible, taking into account the extent to which the error affects the Solution. The Licensee may not invoke a breach of performance for minor errors.

4.9.5.    The distinction between serious and insignificant errors is made exclusively by the Licensor. However, the following errors are always considered serious errors:-    errors that result in the entire Solution not being available;-    errors that result in reports not being able to be submitted in the Solution's report portal;-    errors that result in a user of the Licensee not being able to log on to the Admin-Portal of the Solution, and-    errors that result in the impossibility for a user of the Licensee and a whistle-blower to communicate via the Solution.

4.9.6.    The Licensor is not responsible for errors in the Solution caused by misuse or abuse of the Solution by the Licensee or third parties.

4.9.7.    The Licensee is responsible for the correct configuration of the Solution for use by his organisation.

4.10.    Security

4.10.1.    The Licensor guarantees that the security of the Solution corresponds to the state of the art in the hosting of internet based applications. The data processing agreement of the Licensor contains a list of the technical and organisational measures taken to ensure a high level of information security. The hosting provider Deutsche Telekom is ISO 27001 certified with the Open Telekom Cloud.

4.10.2.    The Licensor is not liable for the consequences of hostile attacks on the Solution.

4.10.3.    The Licensee is obliged to comply with the generally accepted safety guidelines, including (but not limited to):-    No sharing of passwords for the Solution's Admin-Portal.-    Login to the Admin-Portal of the Solution only via secure computers with the latest antivirus/antimalware software installed.-    Regular checking of the administrators' accounts and blocking or updating the administrators' accounts in case of separation from an employee or change of position of an employee.-    In the "Download reports/processing log" section, the Licensee can download lists of activities carried out in his Solution. This should be done on a regular basis in order to detect irregularities at an early stage.

4.10.4.    A daily backup of the Solution is made and this backup is stored for 30 days and then automatically deleted. A monthly backup is created at the end of each month. This monthly backup is kept for three years and then deleted.

4.10.5.    If the Licensee requests the Licensor to back up his data, this request must be made in writing to the Licensor. The costs for this are to be paid separately and amount to 300 euros plus the respective statutory VAT for the separate backup of the data, insofar as the cause of the data backup is not attributable to the Licensor.4.11.    Processing of personal data

4.11.1.    The processing of personal data is regulated by the data processing agreement of the Licensor.

4.11.2.    The Solution is configured to comply with the requirements of EU legislation on the processing of personal data (GDPR). Passwords (to the Admin-Portal and to the whistle-blower's mailbox) must be at least 8 characters long, contain a mixture capital and small letters and contain at least one digit. Access to the Solution will be suspended for 5 minutes after 10 consecutive unsuccessful login attempts.

4.11.3.    The Licensee is obliged to ensure the secrecy of passwords and usernames.

5.    Final provisions

5.1.    The Conditions apply automatically from the moment the Licensee places an order for the Service with the Licensor.

5.2.    Amendments and supplements to this agreement must be in writing to be effective and must be accepted by all Parties. This also applies to the amendment of this provision. Section 305b of the German Civil Code (Bürgerliches Gesetzbuch – BGB) remains unaffected.

5.3.    The Conditions may be changed by the Licensor at any time at its sole discretion with effect from the next License period.

5.4.    The Licensee will be notified of significant changes to the Conditions by e-mail to the e-mail address provided by the Licensee in the "Settings" section of the Admin-Portal.

5.5.    Exclusive place of jurisdiction for all disputes arising from or in connection with this agreement is registered office of the Licensor.

5.6.    Should individual provisions of this agreement be subject to interpretation or supplementation in whole or in part, the interpretation or supplementation shall be made in such a way that the spirit, content and purpose of this agreement is best served. The provisions which the Parties would reasonably have agreed upon if they had considered the need for interpretation or supplementation of the relevant provision when concluding this agreement shall apply. Should this agreement contain a gap in the provisions, the above Section V.7. shall apply accordingly.

5.7.    Each Party shall bear its own costs, unless otherwise provided for in this agreement.

5.8.    This agreement and its interpretation are subject exclusively to German law.

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