1.1. Audisto.com is a service provided by Audisto GmbH, Hans-Thoma-Str. 4, 76593 Gernsbach, Germany (hereinafter also referred to as "Service Provider"). References to Audisto.com encompass analyzing, consulting as well as custom development services and related websites.
1.2. "You" and "your" refer to you, as a user or customer of Audisto.com. "We", "us", and "our" refer to the Service Provider. "Content" means all content and information like text, images, photos, video, messages, ratings, links or data on a person or a location.
1.3. These General Terms of Service (hereinafter referred to as "ToS") represent the exclusive basis for all legal relationships established between us and you, related to the use of Audisto.com.
1.4. Participants in our Affiliate program shall be subject to separate general terms and conditions.
1.5. By accessing or using Audisto.com, you are agreeing to these ToS and concluding a legally binding contract with us. Do not access or use Audisto.com if you are unwilling or unable to be bound by the ToS.
2.1. Our services include analysis, consulting and custom development services . Our concrete service obligations to you are derived from the service descriptions on our website, https://audisto.com/, as well as other agreements in contractual offers and agreements reached in concepts insofar as these have been agreed or confirmed in writing (hereafter described as “job description”).
2.2. If the job description is not available, if it is inadequate or if in certain cases its scope is doubtful, the services to be provided shall include the tasks usual within the sector which are necessary to fulfil the agreed contractual purpose. Subsequent amendments to the order description require the express confirmation of the other contractual partner in order to become effective.
2.3. The contract upon which these ToS are based is a service contract.
2.4. Individual target agreements such as statistical values, growth or user numbers do not change the character of the contract as a whole. Only where all contractual services serve to achieve a concrete target does this constitute a works contract. Such a target agreement must be expressly stipulated in writing.
2.5. In addition, we owe you services in accordance with the type and quality that are average for the industry or service sector.
2.6. Subject to contradictory agreements concerning the nature and execution of the agreed services, we are free as regards the time and place of their execution and have the right to make use of the services of subcontractors in performing this contract.
3.1. Our offer is expressly for business customers/contractors and not for consumers. Consumers are prohibited from using our services. Business customers/contractors are natural or legal entities or partnerships with legal capacity acting in execution of their autonomous professional or commercial activity when concluding a transaction. This includes, in particular, industrial and trade companies, members of independent professions, businesses and government agencies. A consumer means every natural person who enters into a legal transaction for a purpose that is mainly outside his trade, business or profession.
3.2. With the use of our services, you agree that you are a business customer and not a consumer. We reserve the right during the provision of our services as well as before their provision to verify that our customers are not consumers (e.g. examination of the address, the tax identification number). Customers shall provide, upon request, supporting documents, such as a copy of the business registration information.
4.1. The contractual relationship with us is established upon the completion of the registration procedure on Audisto.com. The registration procedure is completed upon the calling up of the confirmation link forwarded by email. The accounts shall be activated immediately, but made only upon payment of the invoice provided with full functionality. In particular, access to the reports will be disabled until payment is made.
4.2. A contract can also be concluded by means of an individual agreement.
4.3. We are permitted to refuse the conclusion of a contract for objective reasons. If a registration is incomplete, we are entitled to delete the user account within one week.
4.4. Except where otherwise specified, offers are valid for 30 days.
5.1. The provisions in this section of the ToS specify the legal responsibility and obligations between us and you, insofar as these have not been explicitly agreed in the job description.
5.2. Our services include no legal examination or consultancy (for example, of a trademark, copyright, data protection, competition or professional association nature.)
5.3. You shall ensure that the content you provide is free of third-party rights and that its publication does not violate applicable law in any form. The content provided also includes such content and its sources as you recommend or suggest to us with regard to the fulfillment of our obligations (e.g. useful links). This shall also include campaigns and other measures that you propose.
5.4. Where we suggest content, measures or services, you are obliged to examine their legal admissibility.
5.5. We must point out that making online offers can involve legal obligations, especially information obligations, and that such obligations can also change at any time (e.g. provider labeling, data protection declaration, consumer information in connection with long-distance selling contracts etc.). Non-compliance with such obligations can have consequences in civil and criminal law. You alone are responsible for compliance with these obligations.
5.6. Insofar as we provide you with legal models, e.g. usage and data protection terms, these should be considered as templates. It is your responsibility to adapt the models to your own legal requirements.
5.7. Please note that online activities harbor legal risks due to constant legal and technical changes. We will Endeavour to advise you of all such legal dangers and problems as are common within the sector but cannot accept any responsibility for this.
6.1. The contracting parties co-operate in an atmosphere of mutual trust and will immediately advise each other of deviations from agreed action or if doubts arise as to the correctness of the other party’s actions.
6.2. Should you recognize that your own information and demands are in error, incomplete, unclear or impracticable, you must advise us of this immediately together with such consequences as you can foresee.
6.3. The content provided by you will be verified solely for its plausibility. A more detailed, e.g. linguistic review shall be carried out only where this has been explicitly agreed.
6.4. Upon request, you must provide us with the names of contact partners and their deputies and advise us of possible limitations on their powers of representation and decision-making. The contracting partners must notify each other immediately should there be any change in the persons of the contact partners or their deputies. The previously specified contact partners and/or their deputies shall be considered as being entitled to make and receive declarations within the scope of their previous powers of representation until such notifications have been received.
7.1. We may send you service-related emails (e.g., account verification, technical and security notices, notifications on crawl status, inactivity notifications, account invitations to other users, changes/updates to features of the service).
7.2. Note that you may not opt out of service-related emails.
8.1. The basis for remuneration is the remuneration agreement concluded between the contracting parties. The remuneration agreement can derive from the pricing information within Audisto.com at https://audisto.com/pricing or from one of our offers. Billing for analyzing services is generally based on projects.
8.2. We reserve the right to change the scale of remuneration at any time. With regard to current contracts, such change shall take effect only from the beginning of the following contracting period.
8.3. You may settle the remuneration using one of the payment methods we have offered to you. You will be provided with the invoices electronically. The invoices will be issued in advance on the 14. day of each month. Unless otherwise agreed, the time allowed for payment after invoicing is 14 days.
8.4. If third parties are responsible for payment processing, e.g. Paypal, then the general terms and conditions of that third party are applicable for payment processing.
8.5. If we cannot provide our services due to lacking and inadequate co-operation or supplies from you or if we can provide our services only by incurring additional expenditure, we are entitled to claim such necessary additional expenditure from you.
8.6. Should it not be possible to have an invoice paid by direct debit, you shall bear all consequential costs. These include especially bank charges in connection with the return of direct debits and comparable fees to the extent that you are responsible for the event that triggers the costs. We can send you payment reminders electronically.
8.7. Should you fall into arrears with your payments, we have the right to refuse to fulfil payments due to you and to block or at first to restrict access to the user account or to restrict the range of provided functions of our service at our discretion until such default has been rectified. Our other legal and contractual rights with regard to payment delay shall remain unaffected.
8.8. Should you fall into arrears with your payment, you must expect to be charged legally set interest (at least 9%) for late payment above the base interest rate. Default interest will be charged, even without a written warning, if the payment is not made at the agreed date. We reserve the right to raise a claim for a higher value of compensation for such delay.
8.9. We may carry out credit checks for our own protection. We may require you to pay using a method that you did not select or we may not accept your offer to conclude a contract, provided that the credit check, in our view, objectively justifies this. We will inform you of this after receipt of your order.
8.10. All contractual remunerations for individual offers shall be subject to the addition of the legal rate of VAT or otherwise shall include the VAT applicable at the time of invoicing.
8.11. You may offset only uncontested or legally binding debts against our claims, insofar as these are not claims for completion or the rectification of faults. You are entitled to a right of retention only for counterclaims arising from the contract that forms the basis of these ToS.
9.1. The contract term for the use of our service Audisto.com, is determined by the selected payment interval. Unless otherwise stated, the contract may be terminated to the end of a month, if we receive the termination note in written form until the 13th day of this month.
9.2. Where an automatic contract prolongation has been selected, the contract will be prolonged automatically upon the expiry of the contract term by the same period, insofar as it has not been previously terminated.
9.3. You may change to a higher tariff and take advantage of its service immediately (described as an “upgrade”) at any time. Insofar as you still have an unused usage quota from the previously existing contractual relationship, this will initially be credited to you or offset against the invoice for the new tariff.
9.4. A change to a lower tariff (described as a “downgrade”) is possible only after the expiry of the respective contractual term.
9.5. In addition, the contractual term is determined by individual agreement.
9.6. Provided the tariff changes lead to an overpayment, the overpaid amount will be transferred to an credit account and will be offset against your subsequent duties to pay. The credit account is not refundable.
9.7. The data that exceeds the volume of the lower tariff will be deleted after the end of the higher tariff period.
9.8. Both contracting parties reserve the right to an early extraordinary termination of the contract for important reasons. An extraordinary termination is permitted in particular where you remain in default with your payment obligations for two months. Where necessary, a written warning concerning the objectionable conduct must precede the extraordinary termination.
10.1. Project related data will be deleted after the expiration of a project and at the latest upon the termination of the contract.
10.2. In case of project expiration or contract termination, you are responsible for saving your data before your project or contract expires.
11.1. The scope of the services we are offering, the user accounts and their technical design are derived from the current technical status of Audisto.com and the description of services at the time of contract conclusion.
11.2. We reserve the right to extend, change or limit functions where this is in the interests of technical progress, is necessary to prevent misuse or where we are legally obliged to do so. Where such change in the scope of functions impairs your contractual use of Audisto.com to a more than negligible degree, you have the right to a fee adjustment or the termination of your contract.
11.3. Claims for defects shall not be entertained if such defect is insignificant, i.e. does not have a significant effect on the agreed service and its target.
11.4. You must notify us in writing of obvious defects that would be immediately apparent to an average user within seven working days after their materialization and give a sufficiently detailed reason for their rectification. In case of defects that are not obvious, the grace period for notification begins upon their recognition. Otherwise, claims for such defects cannot be raised.
11.5. Necessary adjustments that we could not have foreseen in the normal course of events do not constitute defects. In particular, these include unforeseeable changes in the legal position at the time of performing our services or technical changes carried out by third parties over which we have no influence.
12.1. You hereby acknowledge that a 100% availability of Audisto.com cannot be technically assured. However, we shall strive to keep Audisto.com available as consistently as possible and assure you of an annual average availability of 98% in accordance with the following limitations in this section.
12.2. We cannot ensure the availability of Audisto.com during times in which it cannot be accessed due to technical or other problems that lie outside our sphere of influence (Force Majeure, third-party culpability, necessary maintenance etc.). Where the safety of the network or the maintenance of network integrity is endangered for reasons beyond our sphere of responsibility, we can temporarily limit access to Audisto.com as required.
12.3. You will be notified of foreseeable downtimes due to maintenance work in good time in advance. Claims in this respect can therefore not be deduced.
13.1. You shall provide us free of charge and unlimited in terms of location with the simple right to copy, publicize, and process the legally protected content, information and data provided by you or in your name and to transfer these rights to third parties such as subcontractors.
13.2. You furthermore shall provide us with the representation rights required to fulfil the contract and to make and publish statements in your name.
13.3. With regard to the geographic, material, temporal and personal scope, the above provision of rights is effected only insofar as it is required for our fulfillment of the contractual services and subsequently expires automatically. Before initiating legal action, you shall notify us of any usage of the rights outside of this framework and give us an opportunity to stop using these rights or to limit their usage to the required extent.
13.4. As a general rule Domains must be verified by us according to a predetermined procedure before they can be crawled.
13.5. If the crawling of a domain is made possible for you without verification, the following provisions apply: it is your responsibility to check that the crawls do not violate the rights of any third parties in type or scope (e.g. crawling websites of competitors and affecting their services). You shall not infringe on the rights of third parties when crawling unverified domains. You are liable for the costs incurred by such use and for other negative consequences that result from unlawful crawls. Culpable violations of the prohibition of unlawful crawls are punishable by a penalty, which is based on the significance of the violation and amounts to at least 5,000 Euros. In order to ensure that the aforementioned problems do not occur, we may limit the scope of crawls, especially in order to avoid any disadvantages caused by the overloading of another server through the use of crawls.
14.1. Insofar as protective rights are created by our fulfillment of services (e.g. copyright protection for texts or graphics; hereafter described as “service capable of being protected”), we hereby transfer to you the usage rights required for the respective purpose of the service to the usage extent appropriate to the job description, the period of usage and the geographic application area. Insofar as nothing to the contrary has been agreed, a simple usage right will be transferred.
14.2. The usage rights to the service capable of protection will be transferred to you for the time required in accordance with the job description. This time period can be specifically agreed or be determined by circumstances, e.g. the term of a marketing campaign, within which a certain graphic is used. Should the service capable of protection have been intended to remain permanently with you, (for example, text or image entries in websites), the right to use this service capable of being protected will also be provided without a time limit.
14.3. You may grant other users access to your account and data, but only using the "Shares"-system, as it is provided by our service (e.g. as an agency to its clients). Beyond that you are furthermore not entitled to rent, lend, lease, sell or make the service capable of protection wholly or partially accessible in any technical form whatsoever to third parties for remuneration or free of charge without our explicit written approval. Sub-licenses must not be issued.
14.4. The usage rights to the service capable of protection will be transferred to you only after the remuneration has been paid to us in full.
14.5. Insofar as the service capable of protection contains Open Source elements, the transfer of rights will be effected only in accordance with and to the extent of the relevant Open Source license. We must point out explicitly that the Open Source elements may only be used and processed and be the objectives of official injunctions within the scope of the respective license.
15.1. Templates, drafts, raw data, files and other working materials that we prepare and that serve to provide the service owed under the contract shall remain our property.
15.2. Copyright, usage and ownership rights to the work presented within the scope of presentations and pitches shall remain with us, even where a presentation or pitch fee has been charged. Only upon the award of an order for realization in return for a special remuneration do you acquire usage rights to the agreed extent.
15.3. There is no obligation to surrender and archive.
16.1. The contracting parties undertake to treat all information they gain knowledge of during the fulfillment of this contract as confidential and to use it only for contractually agreed purposes.
16.2. The rights and obligations in accordance with this section concerning confidentiality shall remain unaffected by a termination of this contract.
16.3. We are entitled to use the individual services provided to you for self-advertising purposes, i.e. insofar as they are not based on an individual consultancy and are not the simple registration and usage of our services.
16.4. We are also permitted to act on behalf of other customers, however only insofar as the other activities do not lead us to compromise our obligations under these ToS and the related contractual relationship is not compromised and we are aware or should be aware of this.
17.1. You agree to indemnify, defend, and hold us, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives (hereinafter referred to as "Audisto Entities") of each of harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) user's access to or use of Audisto.com, (ii) your violation of the ToS, (iii) any products or services purchased or obtained by users in connection with Audisto.com, or (iv) the infringement by users, or any third party using user's account, of any intellectual property or other right of any person or entity.
17.2. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
18.1. PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE AUDISTO ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. GERMAN AND AUSTRIAN USERS ARE REFERRED TO THE PARTICULAR LIABILITY LIMITATION CLAUSE FOR THESE JURISDICTIONS. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING AUDISTO.COM. BY ACCESSING OR USING AUDISTO.COM, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
18.2. AUDISTO.COM IS MADE AVAILABLE TO YOU ON AN "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE AUDISTO ENTITIES MAY NOT MONITOR, CONTROL, OR VET USER CONTENT. AS SUCH, YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK. THE AUDISTO ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SITE, ITS SAFETY OR SECURITY, OR THE SITE CONTENT. ACCORDINGLY, THE AUDISTO ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SITE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BUSINESS LISTINGS, RATINGS, REVIEWS, METRICS OR REVIEW FILTER FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE SITE.
18.3. AUDISTO ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE SITE OR THE SITE'S USERS. ACCORDINGLY, THE AUDISTO ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED ON THE SITE. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SITE IS AT YOUR OWN DISCRETION AND RISK.
18.4. AUDISTO ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SITE, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ONE OF THE AUDISTO ENTITIES SHALL CREATE A REPRESENTATION OR WARRANTY.
18.5. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SITE.
18.6. THE AUDISTO ENTITIES' MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SITE OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE AUDISTO.COM ENTITIES IN CONNECTION WITH THE SITE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) 100 €.
18.7. THE AUDISTO ENTITIES DISCLAIM LIABILITY FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, OR (v) LOSS OF INFORMATION OR DATA.
19.1. The following exclusions and limitations of liability apply with regard to OUR liability for damage compensation, notwithstanding the other legal claim requirements.
19.2. WE assume unlimited liability if the cause of the damage is the result of intent or gross negligence.
19.3. Furthermore, WE assume liability for the slightly negligent breach of significant duties, whose breach places the achievement of the purpose of the Agreement at risk, or for the breach of duties whose fulfilment generally enables the execution of the Agreement and on whose compliance they regularly rely. However, in this case, WE shall only be liable for the foreseeable damage that might typically occur under the Agreement. We are not liable for the slightly negligent breach of duties other than those stated in the above-mentioned sentences.
19.4. The above-mentioned limitations of liability do not apply for loss of life, bodily injury or damages to health for a defect after assumption of a guarantee for the nature of the product and for fraudulent concealment of defects. Liability pursuant to the Product Liability Act remains unaffected.
19.5. If OUR liability is excluded or limited, this also applies for personal liability of employees, representatives, agents or assistants.
20.1. We reserve the right to change the ToS at any time with effect from a future date. A change in essential provisions which influence your contractual claims shall be made only for valid and objective reasons, especially of a legal, technical and economic nature.
20.2. We shall advise you of the amended ToS, at least in text form, so that you will have at least two weeks time to object to the change. In case of an objection, we can determine whether the previous ToS in our contractual relationship with you shall remain valid or whether you shall receive the right to termination. Should you not object to the amended ToS within the objection period, they shall be considered to have been accepted.
21.1. The basic form for all declarations within the framework of this contract is, subject to explicitly deviating provisions, text form with a recognizable and clearly attributed sender and recipient as a minimum (for example, email with a recognizable sender). Verbal or conclusive declarations are therefore invalid. Declarations which fulfil higher form requirements may replace the text form. As far as the written form is required, the text form is also sufficient.
21.2. Insofar as we have not explicitly agreed to their application in writing, your possibly deviating business conditions shall not apply. Even though they may be enclosed and the contract may have been supplemented, a reference to your own business conditions does not constitute our acceptance of their applicability.
21.3. Changes to these ToS must be made in writing to be valid. This applies equally to a change to this requirement for the written form.
22.1. Place of jurisdiction shall be our registered office and the German law applies exclusively (except in relation to limitations of liability in No. 19 of this TOS for non-German and non-Austrian customers), both unless expressly agreed otherwise or pursuant to consumer protection legislation.
22.2. Any failure on our part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
22.3. The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these ToS and be void.
22.4. If one of the above-mentioned provisions is partially or completely ineffective, this does not affect the effectiveness of the remaining provisions.