General Terms and Conditions of Business and Use

§ 1 Contractual partners and scope of application

• These General Terms and Conditions of Business and Use (GTC) apply to all legal transactions of Local Brand X GmbH, Mombacher Straße 4, 55122 Mainz, hereinafter referred to as "LBX", with its contractual partner, hereinafter referred to as "Customer", which are offered within the framework of the use of the software - LocalLocal Brand X Local Marketing Platform - (hereinafter referred to as "Software") and other related services of LBX.
• These GTC apply exclusively to customers who are entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law. These GTC apply exclusively, even if LBX provides its services without reservation in the knowledge of conflicting GTC of the customer. LBX shall not recognize any terms and conditions of the customer that deviate in whole or in part from these terms and conditions unless LBX has expressly agreed to them in writing in advance. Individual agreements always take precedence. The same applies if something else arises from offers from LBX.
• According to § 312 i para. 2 sentence 2 of the German Civil Code (BGB), LBX is not obliged to fulfill the information obligations in electronic business transactions according to § 312 i para. 1 no. 1 - 3 BGB.

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§ 2 Objects of performance

• LBX provides the software (§ 1 a) via the Internet for a limited period of time, hereinafter referred to as "software provision", as well as the granting of storage space on servers rented by LBX, hereinafter referred to as "provision of storage space" (software provision and provision of storage space together "SaaS services"). In addition, LBX provides work and services, in particular in the areas of software development, further development, support and software maintenance of its own software.
• The more detailed description of the services to be provided is contained in offers from LBX and their annexes, which are also part of the contract. If nothing further has been agreed in this respect, only the functional description in the Knowledge Center (https://local-brandx.clickup.com) of the Software shall be conclusively authoritative.
• The commissioning of additional services from LBX by the customer is possible and, unless otherwise stated in the underlying offer from LBX, is based on these GTC.
• The offers of LBX are always subject to change and non-binding, unless they are marked as binding offers.
• The establishment and maintenance of the data connection between the transfer point defined under § 3 b) (2) of these GTC and the customer's IT systems are not part of the contract.
• The source code of the software or of individual components is not the subject of the contract.
• LBX may use the help of subcontractors to provide the services owed, provided that this does not conflict with the legitimate interests of the customer.

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§ 3 SaaS services

The customer receives the rental of the software from LBX, including computing power and storage space for use via the Internet ("software transfer"). The more detailed description of the contractual software is defined in the respective LBX offer.

1. Software licensing
   1. The software is made available to the customer for the duration of the agreed period in the current version via the Internet for a fee. For this purpose, LBX makes the software available on a server for retrieval. The software is accessed via the Internet using a current browser or another suitable application.
   2. The transfer point for the software is the point at which the data leaves the LBX data center.
   3. During the term of the contract, LBX shall adapt the service items to market-relevant technical changes as necessary. The customer has no claim to specific improvements or adjustments.
2. Granting of storage space & other quotas
   1. The customer is provided with storage space on a server to store their data. The customer can store data up to a volume of 250 megabytes per user. If the storage space is no longer sufficient to store the data, LBX shall notify the customer of this. Subject to availability, the customer can extend the storage space for a fee.
   2. LBX will ensure that the stored data can be accessed via the Internet. LBX does not owe uninterrupted accessibility.
   3. LBX will take the usual precautions against data loss and to prevent unauthorized access to the customer's data by third parties. For this purpose, LBX regularly makes a backup copy of the customer's data. The security precautions are described in the Technical and Organizational Measures (TOM), which are part of the order processing agreement concluded between the parties.
3. Additions
   1. The customer receives the access data for the administration area from LBX after the start of the contract in order to be able to use the service items in accordance with the contract.
   2. The customer can create users within the software. Only natural persons with real names may be registered as users. The customer shall verify the identity of the users and document their user data in a directory of its registered users ("named user") together with the respective access code.
   3. The software must be used by at least the number of users specified in LBX's offer. This number of users must be purchased for at least the entire term of the contract (minimum purchase). A license must be permanently assigned to a user (named user) and is used permanently by this user. It is not permitted to split a license between several users. Licenses may be transferred to another user at any time, whereby the previous user loses their license.
   4. If the customer creates more users than were ordered in the offer (minimum purchase), the additional number of users will be billed retroactively by LBX in the subsequent invoice. The calculation is always based on the actual number of users created, taking into account the booked minimum purchase on the last day of the month.

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§ 4 Commissioning of additional services and additional expenses

Further services, such as individual adaptations, consultations, additional developments, etc. are agreed as part of LBX's offers or can also be commissioned by the customer after conclusion of the contract as part of individual orders with LBX. If additional services are commissioned, the following applies:

• If the customer wishes to change and/or extend services already ordered, he must inform LBX of his change request via the LBX ticket system.
• LBX examines the effects of the desired change, in particular with regard to estimated additional costs and time estimates.
• After examining the change request, LBX will explain its effects on the previous agreements to the customer. The presentation shall contain either a detailed proposal for the implementation of the change request or information as to why the change request cannot be implemented.
• LBX can refuse to carry out a change or extension request from the customer if this is not feasible or if LBX cannot reasonably be expected to carry it out within the scope of its operational capacity. If LBX recognizes that services to be provided cannot be performed or can only be performed with a delay due to the inspection, LBX shall inform the customer of this. The customer shall then decide whether the change procedure is to be continued or terminated.
• The customer can accept the proposal for the implementation of the change request from LBX in accordance with § 4 (3) via the LBX ticket system.
• Services that LBX provides in accordance with § 4 (5) must be accepted by the customer. Acceptance by the customer must be carried out via the LBX ticket system. If disadvantageous deviations of the services from the agreed quality that are not recognized by the customer or due to gross negligence are not reported to LBX, the services shall be deemed to have been provided in accordance with the contract with regard to these unreported deviations. If the customer does not or does not fully comply with his obligation to accept, the services shall be deemed to have been provided in accordance with the contract, provided that there are no deviations that would have been recognizable in a dutiful acceptance. LBX will inform the customer of the significance of his behavior before acceptance as part of the request in accordance with this provision. Insofar as LBX has fraudulently concealed deviations in quality, LBX cannot invoke the provisions of this paragraph.
• If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain unchanged.
• Dates affected by a change procedure shall be postponed as necessary, taking into account the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be carried out, plus a reasonable start-up period.
• The customer shall bear the costs arising from the change request. This includes in particular the examination of the change request, the preparation of a change proposal and any downtimes. The expenses shall be charged according to the usual remuneration of LBX.
• LBX is only obliged to comply with the customer's requests for changes or extensions with the customer's express consent.

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§ 5 Rights of use to the software and other content

• The customer receives a non-exclusive, non-transferable right, limited in time to the term of the contract, to access the software via the Internet and to use it as intended. This also applies to all additional developments to the software that the customer has additionally or subsequently commissioned from LBX.
• The software may only be used by the contractually agreed number of defined users (minimum purchase) at the customer's premises ("named user"). If the number of users exceeds the number of licenses booked, the difference will be recalculated by LBX at the end of the half-year.
• The customer is not entitled to use the software beyond the rights granted in the above paragraphs or to have it used by third parties, in particular sub-companies. Use is only permitted within the customer's own business operations.
• In particular, the customer is not permitted to reproduce or exploit the software or parts thereof, whether by sale, rental or other forms of exploitation.
• The customer grants LBX the rights of use necessary for the execution of the contract to all data that he transfers in connection with the use of the software on the storage space provided. This includes in particular the right to make the customer's data accessible via the Internet for queries, to reproduce and transmit it for this purpose and to reproduce it for the purpose of data backup. The customer shall always remain the sole beneficiary of this data and may demand the return or deletion of individual or all data at any time, in particular after termination of the contract, without LBX having a right of retention. The data shall be returned at the customer's discretion either by handing over data carriers or by sending them via a data network. The customer is not entitled to receive the software suitable for further use of the data.
• If LBX does not receive an order from the customer after a presentation, all rights of use, in particular the presentation documents and their content, shall remain with LBX; the customer is not entitled to use them further - in any form whatsoever - for his own or third-party purposes; documents handed over by LBX must be returned to LBX immediately or verifiably deleted at LBX's request.
• In particular, the customer must ensure that it has the necessary rights of use for the fonts used by it within the scope of the software. For this purpose, the font is required as a server license.

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§ 6 Support and service parameters  

• Unless otherwise stated in the underlying offer from LBX, LBX alone provides 2nd level support, i.e. the customer receives support in the event of a functional malfunction of the software. 1st-level support, i.e. support for application issues, is not owed by LBX without a separate agreement and is the responsibility of the customer.
• LBX accepts inquiries from the customer regarding the use of the software (§ 3) on working days between 9 a.m. and 5 p.m. via the ticket system provided and will answer them as promptly as possible. Fault reports and errors can also be sent to LBX by telephone and in writing. Support can be reached at +49 6131 63571 71 and support@local-brand-x.com.
• If the customer identifies an issue related to the contractual items, they are required to describe the issue as precisely as possible. In particular, the following information should be provided whenever possible:
  • § 1 Contractual partners and scope of application
  • Description of the problem so that it can be categorized;
  • Description of the functionality that should actually take place;
  • Description of what exactly is not work;
  • Description of when the issue first occurred;
  • Specification of the device used (smartphone, tablet, PC, etc.);
  • Specification of the operating system used and the corresponding version;
  • Specification of the browser used and the corresponding version;
  • If possible, a screenshot must be provided.
• Response time is the period between LBX receiving the error report and an LBX employee beginning to resolve the issue. If additional information or actions are required to resolve the issue and LBX does not have access to this information or environment, the calculation of the resolution time will be paused until the customer provides the necessary response or access. Once the customer supplies this information or grants access to LBX, the resolution time measurement resumes.
• The error classes and their priorities are defined as follows:
  
  Error class / priority
  1 – critical – Complete system failure; critical business process not possible
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  2 – high – Part of the business processes affected; no workaround available
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  3 – normal – Single user affected; multi-user problem, but workaround available
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  4 – low – No business process affected, no workaround required; minor / "cosmetic" troubleshooting sufficient
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• Unless otherwise agreed, the response and troubleshooting time depends on the assignment to an issue class (FK1, FK2, FK3, FK4) and is defined as follows:
  
  Error class / priority – Service level
  Priority – Severe – response time – Troubleshooting time
  1 - critical – emergency – 2 hours 8 hours
  2 - highly – critical – 4 hours 40 hours
  3 - normal – non-critical – 1 day 20 working days
  4 - low – insignificant – 1 day Next release / next patch

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§ 7 Interruption of accessibility  

• Adjustments, modifications, and enhancements to the deliverables, as well as measures for identifying and resolving functional issues, will only lead to a temporary interruption in availability if this is technically unavoidable. Scheduled and announced maintenance work is not considered downtime. LBX conducts a regular maintenance window on the fourth Friday of each month from 5:00 PM to 7:00 PM. LBX will make reasonable efforts to announce special maintenance activities at least 7 days in advance.
• LBX strives to ensure high availability of the deliverables. The availability of the services agreed upon under Section 3 shall be 99.5% on an annual average, excluding maintenance work. However, availability must not be impaired or interrupted for more than two consecutive calendar days.

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§ 8 Customer Cooperation Obligations 

• The customer shall support LBX in fulfilling the contractual obligations at their own expense.
• At the start of each assignment, the customer shall designate to LBX a primary contact person and a deputy, including their contact details. These individuals shall be LBX’s exclusive points of contact for all matters concerning the legal framework of the collaboration (including any additional assignments). Upon LBX’s request, the customer shall provide written confirmation that the designated contact person and deputy are fully authorized to make all decisions related to the collaboration.
• The customer may replace the designated contact person and their deputy at any time with other individuals. Any changes must be communicated to LBX without delay, in writing or by email. When making such changes, the customer shall ensure that there are no disruptions to the collaboration and that newly appointed contact persons possess all necessary information and expertise required for the smooth continuation of the project.
• The customer shall ensure that all cooperation duties necessary for the provision of the agreed services are performed in a timely, complete manner and at no cost to LBX.
• If the customer detects a data loss, they must notify LBX without delay. In the event of data loss, LBX will restore the most recent backup. If the customer is responsible for the data loss, they shall reimburse LBX for any resulting expenses.
• If the customer, despite LBX’s explicit recommendation and the availability of additional computing resources, chooses not to rent additional computing capacity, and operational errors, disruptions, or interruptions in the software occur as a result of insufficient computing resources, LBX shall not be held liable to the extent that such errors, disruptions, or interruptions are caused by the lack of computing capacity.
• The customer undertakes not to store any data on the provided storage space that violates laws, regulatory requirements, or the rights of third parties. If the customer becomes aware of a violation of this obligation, they must promptly inform LBX and take action to stop the violation. The customer shall indemnify LBX against all third-party claims in this respect upon first request.
• The customer is obligated to prevent unauthorized third-party access to the protected areas of the software by taking appropriate precautions. Passwords and access credentials must therefore be protected and kept confidential. The customer shall also ensure that its users comply with the provisions and obligations applicable to the use of the contractual deliverables under this agreement.
• Notwithstanding LBX’s obligation to perform data backups, the customer is solely responsible for entering and maintaining the data required for the use of the deliverables.
• The customer must check their data for viruses or other harmful components before storing it on the provided storage space and shall use up-to-date antivirus software in accordance with the current state of the art.
• The customer must ensure the necessary technical requirements for the use of the service items during the term of the contract. Failure to do so may result in faulty operation for which LBX is not responsible. This applies in particular, but not exclusively:
  • Sufficient bandwidth and quality of service, both within the customer’s local network and on the line provided by the customer’s network operator.
  • VPN-capable routers.
    
    LBX can inform the customer of further technical requirements separately before the contract is concluded.
• In the event of malfunctions, functional failures or impairments of the objects of performance, the customer is obliged to inform LBX immediately and as precisely as possible. If the customer fails to provide such notification, Section 536c BGB shall apply accordingly. If access to the customer's access by means of remote maintenance is necessary to rectify the fault, the customer shall provide LBX with this access.
• Insofar as the customer's data stored on the storage space provided contains personal data, the customer shall conclude the order processing agreement with LBX.
• The customer undertakes to ensure that each user of the software complies with and accepts the provisions of this contract, in particular the provisions of § 8.
• The customer is responsible for the integration of service providers via the software. It is the sole responsibility of the customer to decide whether and which third-party providers to connect or commission. A contractual relationship with the respective third-party provider is the sole responsibility of the Customer in this context. LBX merely provides the corresponding infrastructure via the software. Please note that a contractual relationship arises directly between you and the respective service provider and LBX does not become a party to the contract in this context. Only the agreements made between you and the service provider regarding the contract and data protection are authoritative.
• The customer is responsible for the creation and configuration of content (pages, articles, service providers, templates, etc.). At the customer's request, LBX can provide support for a fee. However, the customer alone is obliged to ensure quality assurance, i.e. to check the content. It is therefore the sole responsibility of the customer to ensure that all content is provided or configured correctly. LBX only provides purely advisory support services here.

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§ 9 Fees 

• The amount of the fees for the transfer or provision of the services and objects of performance is determined by the underlying offer from LBX and is calculated from the start of the contract. The ongoing license fees for SaaS services are to be paid semi-annually in advance (in January/July of each year). If a price is to be charged for parts of a calendar month, this shall be calculated at 1/30 of the monthly price for each day
• When commissioning additional services, the customer must pay 50% of the one-off project costs upon conclusion of the contract and the remaining 50% after acceptance of the service result.
• Invoice amounts are due and payable in full within 30 days of receipt of the invoice.
• Additional services and commissions provided by LBX are invoiced quarterly at the end of the quarter on a time and material basis. LBX's daily rates are based on an 8-hour day. Any additional work will be charged on an hourly basis.
• For individual integrations of third-party systems/service providers/interfaces, a 20% maintenance fee is charged annually on the development costs.
• Unless otherwise agreed, the customer shall bear all expenses such as travel and accommodation costs, expenses and third-party claims for remuneration incurred by LBX in connection with the execution of the contract against proof. All travel costs for trips and other incidental expenses incurred by LBX in the performance of the contract shall also be charged separately. Unless otherwise agreed, travel costs/expenses and expenses incurred in connection with the execution of the order or provision of the service shall be charged to the customer in addition to the agreed price. Travel times are considered working time. For journeys by car, € 0.50 shall be charged per km driven. Unless otherwise agreed, travel times shall be charged at € 75 per hour. All other costs, such as rail travel (2nd class), flights, overnight stays, expenses, fees (e.g. for image rights, license fees, etc.), expenses, transport costs, material costs and all other third-party costs shall be charged to the client, unless otherwise agreed.
• The customer is only entitled to use the service items beyond the scope agreed in the offer with the prior written consent of LBX. In the event of additional use without consent, LBX is entitled to demand additional fees based on the rates agreed in the offer.
• All prices are in euros plus the statutory VAT applicable at the time the service is provided.

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§ 10 Warranty and liability 

• In accordance with the rules of tenancy law, LBX warrants the agreed quality of the objects of performance and that the use of the objects of performance by the customer in the contractual scope does not conflict with any rights of third parties.
• In the event of material defects, LBX shall, at its discretion, either provide the customer with a new, defect-free object of performance or remedy the defect within a reasonable period of time; LBX shall also be deemed to have remedied the defect if LBX shows the customer reasonable possibilities to avoid the effects of the defect (workaround).
• In the event of defects of title, LBX shall, at its discretion, provide the customer with a legally flawless opportunity to use the objects of performance or replaced or modified equivalent objects of performance.
• LBX is entitled to make the rectification of defects dependent on the customer not being in arrears with the payment of his rent.
• Information on the properties of the objects of performance, technical data and specifications in the offer or the service descriptions and other documents relevant to the contract are not to be regarded as a guarantee (or warranted property) within the meaning of the German Civil Code. Guarantee promises are not made by LBX.
• In all cases of contractual and non-contractual liability, LBX shall pay damages exclusively as follows:
  • unlimited in the event of intent and gross negligence;
  • in the event of slight negligence, only for breach of a material contractual obligation in the amount of the foreseeable damage typical for the contract.
• The strict liability of LBX pursuant to Section 536 a (1), 1st alternative BGB for defects that already existed at the time the contract was concluded is excluded.
• The limitations of liability in accordance with the above paragraph do not apply to liability for bodily injury and liability under the Product Liability Act.
• Claims of the Customer under this contract arising from warranty and liability shall lapse at the latest 12 months after the due date and possible knowledge of the claim. This does not apply in the case of intent and gross negligence or in the case of physical injury, non-fulfillment of independent guarantees and fraudulent intent by LBX. The period begins at the end of the month in which the reason for the claim arose and the sales partner became aware of the entitlement to the claim.

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§ 11 Dates

Dates for the provision of services are only binding for LBX if they are confirmed by LBX in advance in writing or in text form

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§ 12 Force majeure

• LBX is released from the obligation to perform under this contract if the disruption to performance is due to the occurrence of force majeure circumstances after conclusion of the contract.
• Force majeure circumstances include, for example, war, strikes, unrest, expropriation, cardinal changes in the law, storms, floods and other natural disasters as well as other circumstances for which LBX is not responsible. These include, in particular, water ingress, power failures and interruptions or the destruction of data-carrying lines or infrastructure through no fault of LBX.
• Each contracting party must inform the other contracting party immediately and in writing of the occurrence of a case of force majeure.

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§ 13 Term and termination

• The start and term of the contract are defined in the offer. The contract is automatically extended for the same term if neither party terminates the contract with a notice period of 3 months to the end of the year (31.12.).
• Insofar as advance payments are agreed for the provision of the service items by LBX, the relevant period of the advance payment shall also be deemed to be the minimum contract term. If a separate minimum contract term has also been agreed in accordance with the above paragraph, the longest minimum contract term shall apply in each case. In the case of agreed advance payments, the contract shall be automatically extended by the period of the next advance payment after expiry of the respective advance payment period, notwithstanding the above paragraph, unless notice of termination is given at least two weeks before expiry of the advance payment period.
• The right of the parties to extraordinary termination for good cause remains unaffected. Good cause for extraordinary termination exists in particular if
  • a party repeatedly breaches material contractual obligations under this contract; material contractual obligations include, in particular, the timely payment of fees.
  • a party commits a tortious act in connection with this contract;
  • one party ceases business operations in whole or in part and the immediate continuation of the contract is not secured by a legal successor.
• Notice of termination must be given in writing.
• Upon termination of the contract, for whatever reason, the customer's contractual rights of use shall end. The customer may demand that LBX return the stored data in a commonly used digital format up to one month after termination of the contract. After expiry of the one-month period, all data will be permanently deleted without further notice.

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§ 14 Miscellaneous

• This contract shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
• For all disputes arising from the contractual relationship, if the customer is a merchant, a legal entity under public law or a special fund under public law, the action must be brought before the court that has jurisdiction for the registered office of LBX. LBX is also entitled to sue at the customer's headquarters.
• No verbal collateral agreements have been made. Amendments to this contract shall only be valid if they are agreed in writing between the contracting parties. This also applies to the amendment of the written form clause itself.
• Should any provision of this contract be or become invalid, this shall not affect the validity of the remainder of the contract.

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