General Terms and Conditions of insight.out GmbH

insight.out GmbH
Hauptstraße 101
67433 Neustadt an der Weinstraße

VAT ID: DE 328602137
Managing Director: Franca A. Rupprecht

Phone: +49 631 3437 7637
Email: info@insio.de

§ 1 General, Scope of Application

(1) These General Terms and Conditions (hereinafter "GTC") apply to all business relationships between INSIGHT.OUT GmbH (hereinafter "INSIGHT.OUT") and its customers (hereinafter "CUSTOMER") in commercial transactions, as well as to customers who are legal persons under public law or public law special funds. In particular, these GTC apply to all contracts concluded by a CUSTOMER for the use of the software as a service (hereinafter "APPLICATION") produced by INSIGHT.OUT.

(2) INSIGHT.OUT offers the customer platform usage via the website https://testbox.de/ (hereinafter "PLATFORM"), through which customers can access both free and paid assessments created by third parties (hereinafter "AUTHORS"). These assessments serve as a tool and to support diagnosis. However, they do not replace the diagnosis of the CUSTOMER.

(3) Depending on the contract model, the PLATFORM can be used by the CUSTOMER's own employees or by employees invited by the CUSTOMER who use the PLATFORM for therapeutic purposes. The employees invited by the CUSTOMER use the PLATFORM with the CUSTOMER's approval and at the CUSTOMER's expense.

(4) The offer of the platform and the use of the content available on the platform, in particular the conduct of assessments and the assessment and interpretation of evaluations, is exclusively aimed at appropriately trained personnel with the necessary expertise (specialists/medical service providers). The use of the platform is exclusively permitted to the aforementioned specialist personnel, in particular doctors, psychotherapists, occupational therapists and speech therapists. In addition to the responsibility for their own suitability, the CUSTOMER must also ensure the suitability of the employees they have added.

(5) In addition, INSIGHT.OUT's general terms of use for the use of the PLATFORM apply, especially for the use of the test access to the platform. These will be made available to the CUSTOMER before conclusion of the contract.

(6) These AGB apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the CUSTOMER shall only become part of the contract insofar as their validity has been expressly agreed to by INSIGHT.OUT.

(7) These AGB do not apply to consumers.

§ 2 Registration and Conclusion of Contract

(1) In order to use the PLATFORM, the CUSTOMER is required to register on the INSIGHT.OUT platform. The CUSTOMER is responsible for providing the necessary data for registration. The CUSTOMER is obliged to comply with the applicable terms of use of INSIGHT.OUT for using the PLATFORM and to ensure that the employees invited by him/her also comply with them.

(2) In order to register on the INSIGHT.OUT platform, the CUSTOMER must provide the necessary information in the registration form available on the platform. By clicking on the corresponding button to complete the registration, the CUSTOMER applies for a customer account on the basis of these terms and conditions and the terms of use of INSIGHT.OUT.

(3) After submitting the registration, the CUSTOMER will receive a confirmation email from INSIGHT.OUT confirming the creation of the customer account. After completing the registration, the customer can take advantage of the INSIGHT.OUT offerings on the PLATFORM and invite employees to create their own registrations under their CUSTOMER registration.

(4) The offers of INSIGHT.OUT are non-binding invitations for a contractual offer by the CUSTOMER. This also applies if the INSIGHT.OUT has provided the CUSTOMER with catalogs, technical documentation, other product descriptions, or documents, also in electronic form, to which the INSIGHT.OUT reserves ownership and copyrights.

(5) The order by the CUSTOMER is considered a binding contractual offer.

(6) The acceptance by INSIGHT.OUT is made in writing, in text form, or orally.

§ 3 License fee-free offers

(1) Procedures declared as license fee-free include the authors' permission for the use of their provided materials in accordance with Creative Commons (http://creativecommons.org/about/licenses/) or other licenses. However, use and distribution may only be carried out on the condition that the original source is cited in accordance with the Open Access license and the copyright of the original source is respected.

(2) Further information on the applicable license can be found in the respective offer details of each offer.

§ 4 Fees and payment terms

(1) The fees for the use of the assessments on the PLATFORM consist of the license fee of each assessment and the implementation fee.

(2) The amount of the individual fees is based on the specific conditions of the contract. To this end, INSIGHT.OUT offers the CUSTOMER various pricing models with regard to the implementation fee on the website.

(3) Payment of the fee is made according to the conditions specified in the contract. INSIGHT.OUT reserves the right to exclude individual payment methods.

(4) The CUSTOMER has the option to deposit credit into their customer account to pay for the applicable fees. This credit can be used for payment by both the CUSTOMER themselves and their invited employees. Any remaining credit can be refunded to the CUSTOMER upon request.

(5) If payment is agreed upon by invoice, INSIGHT.OUT reserves the right to conduct a credit check. All fees become due upon receipt of the invoice and must be paid without deduction. The CUSTOMER is in default without further declaration from INSIGHT.OUT if they have not paid within 14 days of the due date and receipt of the invoice.

(6) INSIGHT.OUT is entitled to increase the usage-based fees for the first time after the agreed minimum contract term has expired, with a written announcement of one month before the beginning of the following month.

The CUSTOMER has the right to terminate the contractual relationship within a period of 1 month after receiving the announcement in writing. INSIGHT.OUT will notify the CUSTOMER of this termination right together with each announcement.

(7) Offset by the CUSTOMER with claims that do not relate to the same contractual relationship is excluded, unless the counterclaim of the CUSTOMER is undisputed or legally established.

(8) The CUSTOMER can only exercise a right of retention if his counterclaim is based on the same contractual relationship.

(9) INSIGHT.OUT will always indicate whether the prices stated are gross or net prices.

§ 5 Provision of the APPLICATION and storage space for the application data

(1) To the extent agreed in the contract, INSIGHT.OUT provides the agreed APPLICATION in the current version for use in accordance with the following regulations from the agreed point in time on a central data processing system or several data processing systems (hereinafter, also in the plural: SERVER) rented by a third party from INSIGHT.OUT and operated by it.

(2) INSIGHT.OUT is liable for ensuring that the provided APPLICATION is suitable for the purposes arising from the contract's performance description, in particular, free of viruses and similar malicious software that would render the APPLICATION unsuitable for contractual use.

(3) Insofar and to the extent that the provision of a new version or a change in the functionality of the APPLICATION, supported workflows of the CUSTOMER by the APPLICATION and/or restrictions on the usability of previously generated data are associated, INSIGHT.OUT will announce this to the CUSTOMER in writing at the latest six weeks before such a change takes effect. If the CUSTOMER does not object to the change in writing within a period of two weeks from receipt of the notification of the change, the change will become part of the contract. With each announcement of changes, INSIGHT.OUT will draw the CUSTOMER's attention to the aforementioned period and the legal consequences of its expiration if the right of objection is not exercised.

(4) From the agreed date of operational provision, INSIGHT.OUT will provide storage space on the SERVER in the agreed scope for the APPLICATION DATA. Further details regarding storage space and APPLICATION DATA will be contractually agreed upon if necessary.

(5) The APPLICATION and the APPLICATION DATA are regularly backed up on the SERVER, at least on a daily basis, unless individual contractual agreements to the contrary have been made. The CUSTOMER is responsible for compliance with commercial and tax retention periods.

(6) The handover point for the APPLICATION and the APPLICATION DATA is the router output of the SERVER.

(7) Agreements on system requirements on the customer's side are made in the contract. The objection solution of paragraph 4 applies accordingly to changes to INSIGHT.OUT's technical system. INSIGHT.OUT is not responsible for the quality of the necessary hardware and software on the customer's side, as well as for the telecommunication connection between the customer and INSIGHT.OUT up to the handover point.

§ 6 Non-performance of material obligations

(1) If INSIGHT.OUT does not fully meet its contractually agreed material obligations, the following regulations apply.

(2) If INSIGHT.OUT is in default with the initial operational provision of the APPLICATION, liability is determined according to § 8. The CUSTOMER is entitled to withdraw from the contract if INSIGHT.OUT fails to provide the full agreed functionality of the APPLICATION within a two-month deadline set by the CUSTOMER.

(3) If the CUSTOMER has not reported a possible failure of performance by INSIGHT.OUT, the CUSTOMER must prove that INSIGHT.OUT has otherwise become aware of it.

§ 7 Usage rights and use of the APPLICATION, Rights of INSIGHT.OUT in case of exceeding usage authorizations

(1) Usage rights to the APPLICATION

(a) The CUSTOMER receives simple (non-sublicensable and non-transferable), usage rights to the APPLICATION limited to the term of the contract, for themselves and the employees invited by them, subject to the following regulations.

(b) The CUSTOMER may only use the APPLICATION for their own business activities.

(c) The CUSTOMER is not entitled to make changes to the APPLICATION. This does not apply to changes that are necessary to correct errors, provided that INSIGHT.OUT is in default of correcting the error, refuses to remedy the error, or is unable to remedy the error due to the opening of insolvency proceedings.

(d) If INSIGHT.OUT makes new versions, updates, upgrades, or other new deliveries regarding the APPLICATION during the term, the above rights also apply to these.

(e) Rights that are not expressly granted to the CUSTOMER above are not available to the CUSTOMER. In particular, the CUSTOMER is not entitled to use the APPLICATION beyond the agreed usage, to allow third parties to use it, or to make the APPLICATION accessible to third parties. In particular, it is not permitted to reproduce, sell, or temporarily transfer the APPLICATION, especially not to rent or loan it.

(2) Obligations of the CUSTOMER for secure use

(a) The CUSTOMER shall take the necessary precautions to prevent unauthorized use of the APPLICATION.

(b) The CUSTOMER shall be liable for ensuring that the APPLICATION is not used for racist, discriminatory, pornographic, youth-endangering, politically extreme, or otherwise illegal purposes or for creating and/or storing corresponding data, in particular APPLICATION DATA, on the SERVER in violation of official regulations or requirements.

(3) Violation of the provisions of paragraphs 1 and 2 by the CUSTOMER

(a) If the CUSTOMER violates the provisions of paragraphs 1 or 2 for reasons attributable to him or her, INSIGHT.OUT may block the CUSTOMER's access to the APPLICATION or APPLICATION DATA if the violation can be demonstrably remedied by doing so.

(b) If the CUSTOMER violates paragraph 2 lit. b unlawfully, INSIGHT.OUT is entitled to delete the affected data or APPLICATION DATA. In the event of an unlawful violation by a user, the CUSTOMER shall, upon request, immediately provide INSIGHT.OUT with all information necessary to assert claims against the user, in particular the user's name and address.

If, despite a written warning from INSIGHT.OUT, the CUSTOMER continues to violate the provisions of sections 1 or 2 or does so repeatedly, and is responsible for such violations, INSIGHT.OUT may terminate the contract without notice.

(c) For each case in which the CUSTOMER negligently enables the use of the APPLICATION by third parties (or by users not designated by the CUSTOMER), the CUSTOMER shall be liable for an immediately due contractual penalty, the amount of which is at the discretion of INSIGHT.OUT, whereby the CUSTOMER has the possibility to have the appropriateness of the contractual penalty judicially reviewed in accordance with §§ 315 para. 3, 319 of the German Civil Code (BGB). The right to claim damages remains reserved; in this case, the contractual penalty will be credited against the damages claim.

(d) If the CUSTOMER is responsible for the breach of duty, INSIGHT.OUT may claim damages in accordance with § 8.

§ 8 Duties and Obligations of the CUSTOMER

(1) The CUSTOMER shall fulfill all agreed duties and obligations necessary for the processing of the contract. In particular, the CUSTOMER shall:

1. keep confidential the usage and access rights assigned to him, his employees, and the users, as well as the agreed identification and authentication safeguards, protect them from access by third parties, and not disclose them to unauthorized third parties or users. These data must be protected by appropriate and customary measures. The CUSTOMER will promptly inform INSIGHT.OUT if there is reason to suspect that access data and/or passwords may have become known to unauthorized persons;
2. create the access requirements agreed upon in the contract;
3. comply with the restrictions/obligations regarding usage rights according to § 6, in particular:
   1. not to access or allow unauthorized access to information or data, or interfere with programs operated by INSIGHT.OUT, or intrude into or promote unauthorized intrusion into INSIGHT.OUT,;
   2. not to misuse the possible exchange of electronic messages within the scope of the contractual relationship and/or by using the APPLICATION for the unsolicited sending of messages and information to third parties for advertising purposes;
   3. indemnify INSIGHT.OUT against claims by third parties based on an unlawful use of the APPLICATION by him or resulting from data protection, copyright or other legal disputes caused by the use of the APPLICATION by the CUSTOMER;
   4. obligate authorized users to comply with the provisions of this contract applicable to them;
4. ensure that he (e.g. when transmitting texts/data from third parties to the INSIGHT.OUT server) respects all third-party rights to the material he uses;
5. obtain the necessary consent of the respective data subject pursuant to § 8 para. 2, insofar as he collects, processes or uses personal data when using the APPLICATION and no legal permission applies, in particular the customer is responsible for obtaining consent when entering employee data;
6. check the data and information for viruses before sending them to INSIGHT.OUT and use virus protection programs that correspond to the state of the art;
7. if he transmits data to INSIGHT.OUT to generate APPLICATION DATA using the APPLICATION, regularly back up and create his own backup copies of the data and information, which are commensurate with the importance of the data, to enable their reconstruction in the event of loss;
8. regularly back up the APPLICATION DATA stored on the SERVER by downloading it, insofar as and to the extent that he is given the technical possibility to do so by mutual agreement; INSIGHT.OUT's contractually agreed obligation to data backup remains unaffected.

(2) The CUSTOMER is responsible for the ethical application of the assessments offered on the INSIGHT.OUT platform.

He undertakes in particular

• to act professionally and ethically correctly;
• to ensure that he or the invited users of the offered tests have the necessary expertise;
• to securely store the test material and
• to ensure the confidential treatment of the results obtained from the assessments.

(3) The CUSTOMER is solely responsible for the diagnosis. The procedures provided on the platform serve merely as a tool and to support the diagnosis and in no way replace the CUSTOMER's own diagnosis.

§ 9 Language of the Contract, Storage of the Contract Text

(1) The language available for the conclusion of the contract is German.

(2) INSIGHT.OUT stores the contract text and sends the customer the order data, terms and conditions, and terms of use of the PLATFORM by email. The customer can view past orders in the customer login area.

§10 Liability, Liability Limits and Contractual Penalty

(1) INSIGHT.OUT is not liable for evaluation errors caused by the fact that the evaluation specifications provided by the AUTHORS of the assessments for calculating the test results are incorrect.

(2) Furthermore, INSIGHT.OUT is liable in accordance with the legal regulations, subject to the following limitations.

(3) Any defects that occur must be reported immediately in writing by the CUSTOMER.

(4) Insofar as conflicting third-party rights become known, INSIGHT.OUT will notify the CUSTOMER immediately, but assumes no guarantee that products from third-party providers do not themselves violate third-party rights.

(5) The liability of INSIGHT.OUT, its legal representatives, and agents for breaches of duty and tort is limited to intent and gross negligence. In the event of a breach of essential contractual obligations (cardinal obligations) that endangers the purpose of the contract, INSIGHT.OUT, its legal representatives, and agents are also liable for negligence. In any case, liability is limited to foreseeable damages typical for the contract.

(6) In the event of a legal defect arising from the violation of third-party rights, INSIGHT.OUT is only liable if these rights exist in the Federal Republic of Germany, the CUSTOMER uses the APPLICATION in accordance with the contract and is legitimately claimed by the third party, and the CUSTOMER has promptly notified INSIGHT.OUT in writing of the claims made by the third party.

(7) The exclusion or limitation of liability does not apply to liability for damages resulting from injury to life, body or health, as well as for damages resulting from product liability.

§ 11 Liability for third-party rights

(1) INSIGHT.OUT will immediately inform the CUSTOMER of any third-party rights or claims and of any resulting impairment of the provision of agreed services, and will provide the CUSTOMER with full access to the APPLICATION DATA in an appropriate manner.

(2) The CUSTOMER is not obligated to pay any fees if and to the extent that the rights of third parties impair his use of the APPLICATION.

(3) INSIGHT.OUT shall not be liable for any infringement of third-party rights by the CUSTOMER, to the extent that such infringement arises from a violation of the usage rights granted under this Agreement. In this case, the CUSTOMER shall indemnify INSIGHT.OUT upon first request from any claims of third parties.

§ 12 Duration, Termination

(1) The CUSTOMER may terminate the contract at any time, but no later than 24 hours before the end of the agreed term, to end at the end of the agreed term. The term of the contract is based on the respective individual contract between the CUSTOMER and INSIGHT.OUT. If the customer books a subscription via the website, the billing period and the contract term are identical.

(2) The contract is automatically renewed for the originally contractually agreed term in the event of untimely termination by the CUSTOMER or INSIGHT.OUT.

(3) Both parties may terminate the contract for good cause. Good cause exists for INSIGHT.OUT in particular if the CUSTOMER:

• in contracts with a minimum term or that have been concluded for a certain period of time, falls into arrears with the payment of fees by an amount equal to one monthly fee,
• in contracts that have been concluded for an indefinite period, falls into arrears with the payment of fees for more than 20 calendar days,
• breaches obligations under the contract or these T&Cs in a culpable manner,
• obviously violates laws by using the respective service,
• despite a warning, does not adjust their use of the service within a reasonable period of time so that it complies with the requirements set out in the T&Cs, or
• culpably or negligently violates the contract conditions.

In these cases, all rights of the CUSTOMER to the service expire.

(4) Declarations of revocation and termination must be made in writing, which is also considered to be complied with by fax and/or email.

(5) In the event of extraordinary termination due to payment default, INSIGHT.OUT may also demand a lump-sum damages in the amount of one quarter of the remaining monthly basic fee until the end of the regular contract term, which is immediately due in one installment. The CUSTOMER shall be entitled to prove a lower damage.

§ 13 Data Security, Data Protection

(1) The contracting parties shall comply with the applicable data protection regulations, in particular those valid in Germany, and shall oblige their employees involved in the contract and its performance to maintain data confidentiality, unless they are already generally obliged to do so.

(2) If the CUSTOMER collects, processes or uses personal data, he shall ensure that he is authorized to do so under the applicable data protection regulations and shall indemnify INSIGHT.OUT in the event of any violation by third parties.

(3) INSIGHT.OUT shall only collect and use customer-related data to the extent necessary for the performance of this contract. The CUSTOMER agrees to the collection and use of such data to this extent.

(4) The obligations under paragraphs 1 to 3 shall continue to exist as long as APPLICATION DATA is within the sphere of influence of INSIGHT.OUT, even beyond the end of the contract.

§ 14 Confidentiality

Information that is to be treated confidentially includes information expressly designated as confidential by the disclosing contracting party and information whose confidentiality is clearly evident from the circumstances of its disclosure. This includes, in particular, the prices and offer data provided by INSIGHT.OUT to the CUSTOMER. These may not be disclosed.

Information is not to be treated confidentially if the receiving contracting party demonstrates that:

• it was already known to it or generally accessible to the public before the receipt date;
• it was already known or generally accessible to the public before the receipt date;
• it became known or generally accessible to the public after the receipt date, without the receiving contracting party being responsible for this.

(2) The contractual partners will maintain confidentiality regarding all confidential information that they become aware of in the context of this contractual relationship and will only disclose it to third parties - regardless of the purpose - with the prior written agreement of the respective other contractual partner.

(3) Public statements by the contractual partners about cooperation will only be made with prior mutual agreement.

(4) The obligations under paragraph 2 continue indefinitely beyond the termination of the contract until an exceptional circumstance under paragraph 1 has been proven.

§ 15 Force Majeure

Neither of the contracting parties is obliged to fulfill the contractual obligations in the event of and for the duration of force majeure. In particular, the following circumstances shall be deemed to be force majeure in this sense:

• Fire/explosion/flooding not attributable to the contracting party,
• War, mutiny, blockade, embargo, pandemic
• A labor dispute lasting over 6 weeks and not caused by the contracting party's fault,

Each contracting party shall immediately notify the other in writing of the occurrence of a case of force majeure.

§ 16 Miscellaneous

(1) The exclusive place of jurisdiction for all legal disputes is the registered office of INSIGHT.OUT GmbH.

(2) German law shall exclusively apply, excluding the provisions of private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(3) The conclusion of the contract as well as later amendments and supplements to the contract require written form for their validity. This also applies to the amendment of this clause. Oral side agreements have not been made.

(4) All declarations of the parties require written form for their validity.

(5) Should one or more provisions of these general terms and conditions be or become invalid, the validity of the remaining provisions shall not be affected.