Allgemeine Geschäfts- und
Nutzungsbedingungen

Section 1 Contracting Parties 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 in connection with the use of the software -Local Brand X Local Marketing Platform – (hereinafter "Software"), the provision of Software-as-a-Service ("SaaS Services"), and other related services by LBX.
• These GTC apply exclusively to customers who are entrepreneurs (Section 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 despite knowing of conflicting GTC of the customer. Customer's GTC that deviate wholly or partially from these terms and conditions are not recognized by LBX, unless LBX has expressly agreed to them in writing beforehand. Individual agreements always take precedence. The same applies if LBX's offers state otherwise.
• According to Section 312 i (2) Sentence 2 of the German Civil Code (BGB), LBX is not obliged to fulfill the information duties in electronic commerce pursuant to Section 312 i (1) Nos. 1 - 3 BGB.

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Section 2 Scope of Services

• LBX provides the software (§ 1 a) via the internet on a rental basis, hereinafter "Software Provision", including computing power and storage space on servers rented by LBX, hereinafter "Storage Provision" (Software Provision and Storage Provision together "SaaS Services"). In addition, LBX provides, among other things, work and services, particularly in the areas of software development, further development, customer-specific adaptation of the software, customer-specific additional developments, consulting, production, support, and software maintenance for its own software.
• The detailed description of the services to be rendered is set out in LBX's offers and their appendices, which also form part of the contract. If nothing further is agreed upon in this regard, only the functional description in the software's Knowledge Center (https://local-brand-x.clickup.com) shall be solely authoritative.
• The customer may order additional services from LBX, which, unless otherwise specified in the underlying offer from LBX, shall be governed by these GTC.
• LBX's offers are always non-binding and subject to change, unless they are explicitly designated as binding offers.
• The establishment and maintenance of the data connection between the handover point defined under Section 3 b) (2) of these GTC and the customer's IT systems are not part of the contract.
• If the customer uses the functions of so-called Artificial Intelligence available within the software (hereinafter "AI Features"), the regulations concerning AI Features, marked accordingly in these GTC, shall additionally apply.
• The software's source code is not part of the contract.

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§ 3 SaaS Services

The customer receives the rental provision of the software from LBX, including computing power and storage space for use via the internet ("Software Provision"). The detailed description of the software subject to the contract is defined in the respective offer from LBX.

1. Software Provision
   1. The software will be provided to the customer for a fee for the duration of the agreed period in its current version via the internet. For this purpose, LBX makes the software available on a server for retrieval. Retrieval is done via the internet using a currently common browser or another suitable application.
   2. The functional description in the Knowledge Center (funktionsbeschreibung.local-brand-x.com) is definitively authoritative for the specifications of the software. The customer declares to have had sufficient opportunity to review it.
   3. The handover point for the software is the point at which the data leaves LBX's data center.
   4. During the contract term, LBX will adapt the services to market-relevant technical changes as necessary. The customer has no claim to specific improvements or adaptations.
2. Provision of Storage Space & Other Quotas
   1. For storing their data, the customer is provided with storage space on a server. The customer can store data up to 250 MB per user. If the storage space is no longer sufficient for storing the data, LBX will notify the customer. The customer can expand the storage space for a fee.
   2. LBX ensures that the stored data can be accessed via the internet. LBX does not guarantee uninterrupted availability.
   3. LBX will take customary precautions against data loss and to prevent unauthorized third-party access to the customer's data. For this purpose, LBX regularly creates a security copy (backup) of the customer's data. The security measures are described in the Technical and Organizational Measures (TOM), which are part of the data processing agreement concluded between the parties.
3. Access
   1. After the contract begins, the customer will receive access data from LBX for the administration area in order to use the services in accordance with the contract.
   2. The customer can create users within the software themselves. Only natural persons with their real names ("named user") may be registered as users. The customer will verify the identity of the users and maintain this information in the "User Management" administration area of the software.
   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 contract term (minimum purchase). A license is permanently assigned to one user ("named user") and is used by them permanently. Splitting a license among multiple users is not permitted. Licenses may be transferred to another user at any time, in which case the previous user loses their license.
   4. If more users are created than ordered in the offer (minimum purchase), the additional number of users will be retroactively billed 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 and the prices of the booked minimum purchase tier, on the last day of the month.

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§ 4 AI Features

• LBX provides the customer with the use of certain AI features for the use cases definitively defined in the functional description (funktionsbeschreibung.local-brand-x.com) and the scope of functions described in more detail therein. 
• The AI features on the Local Marketing platform utilize Microsoft's Azure OpenAI Service models. These models are based on advanced Artificial Intelligence and enable the generation of texts, analyses, and other automated functions. Processing takes place via Microsoft's cloud infrastructure in Europe (Microsoft Ireland Operations Limited, One Microsoft Place, South County Business Park, Leopardstown, Dublin 18, D18 P521, Ireland), adhering to high security and data protection standards. The entered data is not used to train the AI model behind the AI system. 
• The use of AI systems may lead to errors, biases, or unintended inaccuracies. Therefore, LBX cannot guarantee the complete accuracy, objectivity, or impartiality of AI-generated content. The information provided must therefore be critically reviewed. It may be advisable to display verifiable sources through the AI features. The customer is aware that AI-generated content should be reviewed by a human before use. 

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§ 5 Commissioning of Additional Services and Additional Costs

Additional services, such as individual customizations, consultations, additional developments, etc., are agreed upon within LBX's offers or can also be commissioned by the customer from LBX through individual orders even after the contract has been concluded.

In the event of commissioning additional services, the following applies:

• If the customer wishes to change and/or extend services already commissioned, they must communicate their change request to LBX via LBX's ticket system.
• LBX will then examine what impact the desired change will have, especially regarding estimated additional costs and timeframes.
• After reviewing the change request, LBX will explain its impact on the existing agreements to the customer. The explanation will contain either a detailed proposal for implementing the change request or information as to why the change request is not feasible.
• LBX may refuse to carry out a customer's change or extension request if it is not feasible or if its execution is unreasonable for LBX within its operational capacity. If LBX determines that services to be provided cannot be performed or can only be performed with delay due to the review, LBX will inform the customer. The customer then decides whether the change process will continue or end.
• The customer can accept LBX's proposal for implementing the change request in accordance with § 5 (3) via LBX's ticket system.
• Services provided by LBX in accordance with § 5 (5) must be accepted by the customer. Acceptance by the customer must take place via LBX's ticket system. If the customer fails to notify LBX of adverse deviations of the services from the agreed quality that were not recognized by the customer or due to gross negligence, the services shall be deemed to have been rendered in accordance with the contract with regard to these unnotified deviations. If the customer fails to fulfill their acceptance obligation, or fails to fulfill it completely, the services shall be deemed to have been rendered in accordance with the contract, provided there are no deviations that would have been recognizable during a proper acceptance. LBX will inform the customer of the significance of their conduct in the context of the request according to this provision before acceptance. If LBX has fraudulently concealed quality deviations, LBX cannot invoke the provisions of this paragraph.
• If no agreement is reached or if the change process ends for any other reason, the original scope of services remains.
• Deadlines affected by a change process will be postponed, taking into account the duration of the review, the duration of the coordination regarding the change proposal, and, if applicable, the duration of the requested changes to be implemented, plus a reasonable lead time, if necessary.
• The customer shall bear the costs incurred by the change request. These include, in particular, the review of the change request, the creation of a change proposal, and any downtime. The costs will be calculated according to LBX's usual remuneration.
• LBX is only obliged to comply with the customer's requests for changes or extensions upon explicit agreement.
• When commissioning additional developments, LBX specifies in the offer whether it is a general improvement or a customer-specific individual development. The customer may object to this classification within 5 working days. If no objection is made, the classification is deemed accepted.

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§ 6 Usage Rights for the Software and Other Content

• The customer is granted a non-exclusive, non-transferable right, limited to the term of the contract, to access and use the software via the internet as intended.
• Additional developments according to § 5 generally become part of the leased software and remain the property of LBX. The customer is granted the right of use according to § 6 (a) during the contract term. If these are customer-specific individual developments according to § 5 (11), LBX is entitled to make them available to other customers in anonymized and generalized form, provided that no specific business secrets or competitive advantages of the customer are thereby disclosed.
• The software may only be used by the customer by the contractually agreed number of specified users (minimum purchase) ("named user"). If the number of users exceeds the booked licenses, LBX will re-invoice the difference at the end of the half-year.
• Without LBX's express written consent, the customer is not entitled to use the software beyond the rights granted in the preceding paragraphs, or to allow third parties, particularly subsidiaries, to use it. 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 necessary usage rights for all data transferred by the customer to the provided storage space in connection with the use of the software, for the purpose of performing the contract. 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 data backup purposes. The customer always remains the sole authorized party for this data and can at any time, especially after termination of the contract, demand the return or deletion of individual or all data, without LBX having a right of retention. The data will be returned at the customer's discretion, either by handing over data carriers or by transmission via a data network. The customer is not entitled to receive the software suitable for further use of the data.
• If the customer uses AI features, they are responsible for ensuring that they are authorized to use the transmitted content, whether prompts, other texts, images, or similar, for this purpose. The software or LBX does not check the permissibility of the data transmitted by the customer in this context. The output generated by the AI features is not intended to be passed on to unauthorized third parties for the use of the services.
• The customer must, in particular, ensure that they possess the necessary usage rights for the fonts used by them within the software. For this purpose, the font requires a server license.
• The customer is solely responsible for the creation and configuration of content (pages, articles, service providers, templates, etc.). Upon the customer's request, LBX can provide support in this regard. However, the customer alone is obliged to ensure the quality assurance involved, i.e., the review of the content. Therefore, it is solely the customer's responsibility to ensure that all content is correctly provided and/or configured. LBX only provides purely advisory support services in this context.

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§ 7 Support and Service Parameters  

• Unless otherwise specified in LBX's underlying offer, LBX provides 2nd-level support only, meaning the customer receives assistance with functional malfunctions of the software. 1st-level support, i.e., assistance with application-related questions, is not owed by LBX without a separate agreement and is the customer's responsibility.
• Customer inquiries regarding the use of the software (§ 3) are received by LBX on weekdays between 9 AM and 5 PM via the provided ticketing system and will be answered promptly where possible. Malfunction reports and errors can also be directed to LBX by phone and in writing. Support is available at +49 6131 63571 71 and support@local-brand-x.com can be reached.
• If the customer identifies an error related to the contractual items, the customer must define it as precisely as possible. In particular, the following information should be provided to LBX where possible:
  • Description of the problem to allow for proper classification;
  • Description of the intended functionality;
  • Description of what exactly is not working;
  • Description of when the error first occurred;
  • Specify the end device used (smartphone, tablet, PC, etc.);
  • Specify the operating system used and its version;
  • Specify the browser used and its version;
  • If possible, a screenshot should be provided.
• Response time is the period between LBX receiving the problem report and an LBX employee beginning the resolution. If additional information or activities are required to resolve the error and LBX does not have access to this information or environment, the calculation of the resolution time will be paused for the period awaiting the customer's response or approval. The moment the customer provides this information or approval 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 business processes affected; no workaround available
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  3   –   normal                   Single user affected; multi-user issue, but workaround available
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  4   –   low                   No business process affected, no workaround required; minor / "cosmetic" fix sufficient
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• Unless otherwise agreed, the response and resolution times are determined by the assignment to an error class (FK1, FK2, FK3, FK4) and are defined as follows:
  
  Error Class / Priority                  Service Level
  Priority             Severity                 Response Time                    Resolution Time
  1   – critical       Emergency                   2 hours                         8 hours
  2  – high           critical                     4 hours                         40 hours
  3  – normal        not critical            1 day                                  20 business days
  4  – low        insignificant           1 day                                  next release / next patch

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Section 8 Interruption of Accessibility  

• Adjustments, changes, and additions to the services, as well as measures serving to identify and rectify malfunctions, will only lead to a temporary interruption of accessibility if this is absolutely necessary for technical reasons. Planned and announced maintenance work does not count as downtime. LBX conducts a planned maintenance window every 4th Friday of the month (5 PM – 7 PM). LBX will endeavor to announce special maintenance work at least 7 days before its commencement.
• LBX strives to ensure high availability of the services. The availability of the respective agreed services according to Section 3 is 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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Section 9 Customer Obligations

• The customer supports LBX in fulfilling the contractually owed services at their own expense.
• At the start of each engagement, the customer will designate a fixed contact person and deputy to LBX, including their contact details. These individuals will be the exclusive contacts for LBX for all matters concerning the legal framework of the cooperation (especially for additional engagements) and for all types of agreements and arrangements. Upon LBX's request, the customer must provide written assurance that the designated contact persons and deputies are fully authorized for all decisions concerning the cooperation.
• The customer may replace the designated contact person and their deputy with other individuals at any time. Changes must be communicated to LBX immediately in writing or by email. When making changes, the customer will ensure that no disruptions occur in the cooperation and that newly appointed contact persons possess all necessary information and expertise required for a smooth continuation of the project.
• The customer ensures that all necessary cooperation services for the provision of the agreed service are provided punctually, completely, and free of charge to LBX.
• If the customer detects data loss, this must be reported to LBX immediately. In the event of data loss, LBX will restore the last backup. If the customer is responsible for the data loss, they must reimburse LBX for the resulting costs.
• If, despite LBX's express recommendation and the availability of computing capacity, the customer does not procure additional computing services, and as a result, due to this lack of computing capacity, operational errors, malfunctions, or interruptions of the software should occur, the parties agree that LBX shall not be liable insofar as this lack of computing capacity leads to operational errors, malfunctions, or interruptions of the software.
• The customer undertakes not to store any data on the provided storage space that violates laws, official regulations, or third-party rights. If the customer recognizes that a breach of this obligation exists, they must immediately inform LBX and stop the violation. The customer will indemnify LBX from all third-party claims upon first request in this regard.
• The customer is obliged to prevent unauthorized third-party access to the protected areas of the software through appropriate measures. Passwords and access data must therefore be protected and kept confidential. The customer will therefore also oblige their users to comply with the provisions and obligations applicable to the use of the contractual items under this contract.
• Without prejudice to LBX's obligation for data backup, the customer is solely responsible for entering and maintaining their data required for the use of the services.
• The customer is obliged to check their data for viruses or other malicious components before storing it on the provided storage space and to use state-of-the-art antivirus programs for this purpose.
• During the contract term, the customer must ensure the necessary technical requirements for the use of the services. Otherwise, this may lead to faulty operation, for which LBX is not responsible. This includes, but is not limited to:
  • Sufficient bandwidth and Quality of Service, both in the customer's local network and on the customer's network provider's line;
  • VPN-capable routers.
    
    LBX may separately inform the customer of further technical requirements before the conclusion of the contract.LBX may separately inform the customer of further technical requirements before the contract is concluded.
• In the event of malfunctions, functional failures, or impairments of the services/deliverables, the customer is obliged to inform LBX immediately and as precisely as possible. If the customer fails to provide such notification, § 536c of the German Civil Code (BGB) shall apply accordingly. If remote access to the customer's account is necessary to rectify the malfunction, the customer will grant LBX this access.
• Insofar as the customer's data stored on the provided storage space contains personal data, the customer will conclude a data processing agreement with LBX.
• The customer undertakes to ensure that every user of the software complies with and accepts the provisions of this contract, particularly those of § 9.
• The customer is solely responsible for integrating service providers via the software. It is solely their responsibility whether and which third-party providers they connect or commission through it. Any contractual relationship with the respective third-party provider is solely the customer's concern in this context. LBX merely provides the necessary infrastructure via the software. A contractual relationship in this context is established directly between the customer and the respective service provider. LBX is not a party to this contract. Only the agreements made between you and the service provider regarding the contract and data protection are decisive.
• The customer is solely responsible for the creation and configuration of content (pages, articles, service providers, templates, etc.). Upon the customer's request, LBX can provide paid support for this. However, the customer alone is responsible for ensuring the quality assurance involved, i.e., reviewing the content. It is solely the customer's responsibility to ensure that all content is correctly provided and configured.
• The customer must promptly check the print files created by the software. Local Brand X provides no warranty for this.
• If the customer uses the AI features, as an operator, they are obliged under the AI Regulation to comply with all applicable legal provisions, in particular: - Art. 5 AI Regulation (prohibited practices) - German Criminal Code (StGB, esp. §§ 130, 131, 184-187) - Data Protection Law (GDPR, BDSG) - Copyright Law (UrhG). In particular, use for creating content that degrades or discriminates against individuals, incites violence/self-harm, or violates legal prohibitions is impermissible. In case of a violation, LBX is entitled to block access, and in case of a severe or repeated violation, to terminate without notice. The customer indemnifies LBX against third-party claims resulting from contractual misuse.

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§ 10 Fees 

• The amount of fees for the provision or delivery of services and deliverables is determined by the underlying offer from LBX and will be calculated from the start of the contract. Ongoing license fees for SaaS services are payable semi-annually in advance (in January/July of each year). If a price is to be calculated for parts of a calendar month, it will be calculated at 1/30 of the monthly price for each day.
• When commissioning additional services, the customer must pay 50% of the one-time project costs upon contract signing and the remaining 50% after acceptance of the service result.
• Invoice amounts are due and payable without deduction within 30 days of receipt of the invoice.
• Additional services and commissions from LBX will be invoiced quarterly based on effort at the end of each quarter. LBX's daily rates are based on an 8-hour day. Effort exceeding this will be charged proportionally by the hour.
• Unless otherwise agreed, the customer shall bear, upon proof, all expenses such as travel and accommodation costs, per diems, and third-party fees incurred by LBX in connection with the performance of the contract. All travel expenses for journeys and other incidental expenses incurred by LBX in fulfilling the contract will also be charged separately. Unless otherwise agreed, travel costs/per diems and expenses incurred during the execution of the order or provision of the service will be invoiced to the customer in addition to the agreed price. Travel time is considered working time. For car journeys, €0.50 per driven km will be charged. Unless otherwise agreed, travel time will be charged at €75 per hour. All other costs, such as train travel (2nd class), flights, accommodation, disbursements, fees (e.g., for image rights, license fees, etc.), per diems, transport costs, material costs, and all other third-party costs will be charged to the client, unless otherwise agreed.
• The customer is only entitled to use the services/deliverables beyond the scope agreed upon in the offer with prior written consent from LBX. In case of additional use without consent, LBX is entitled to charge additional fees based on the rates agreed upon in the offer.
• All prices are in Euros plus the statutory value-added tax (VAT) applicable at the time of service provision.
• Upon default, default interest will be charged at a rate of 9 percentage points above the European Central Bank's base rate applicable at the time the interest claim becomes due. LBX reserves the right to claim further damages.

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§ 11 Warranty and Liability 

• LBX warrants, in accordance with rental law, the agreed quality of the deliverables and that the customer's use of the deliverables to the contractual extent does not infringe upon any third-party rights.
• In the event of material defects, LBX shall, at its discretion, provide the customer with either a new, defect-free deliverable or rectify the defect within a reasonable period; rectification of defects also includes LBX showing the customer reasonable ways to avoid the effects of the defect (workaround).
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  In the event of defects in title, LBX shall, at its discretion, provide the customer with a legally unencumbered right to use the deliverables or equivalent replaced or modified deliverables.
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  LBX is entitled to make the rectification of defects conditional on the customer not being in default with the payment of their rent.
  ‍In the event of legal defects, LBX shall, at its option, provide the customer with legally correct use of the services or of replaced or modified equivalent services.LBX is entitled to make the removal of the defect dependent on the customer not being in default of payment of his rent.
• Information regarding the characteristics of the deliverables, technical data, and specifications in the offer or service descriptions, as well as other contractually relevant documents, are not to be considered a guarantee (or warranted characteristic) within the meaning of the German Civil Code. LBX does not issue guarantees.
• In all cases of contractual and non-contractual liability, LBX shall pay damages exclusively as follows:
  
  • in cases of slight negligence, only for breach of a material contractual obligation up to the amount of the damage typically foreseeable under the contract.
  Any further liability is excluded.
• LBX's strict liability under Section 536a (1), 1st alternative of the German Civil Code (BGB) for defects already existing at the time of contract conclusion is excluded. The limitations of liability according to the preceding paragraph do not apply to liability for personal injury and liability under the Product Liability Act.
• Claims of the customer arising from this contract under warranty and liability expire no later than 12 months from the due date and possible knowledge of the claim. This does not apply in cases of intent and gross negligence, as well as personal injury, non-fulfillment of independent guarantees, and fraudulent misrepresentation by LBX. The period begins at the end of the month in which the cause of action arose and the distribution partner became aware of the entitlement to the claim.
• The use of AI features may lead to errors, distortions, or unintended inaccuracies. Therefore, LBX cannot guarantee the complete accuracy, objectivity, or impartiality of content generated by AI. The information provided should therefore be critically reviewed. It may be advisable to have verifiable sources displayed by the AI features.

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Section 12 Dates

Dates for performance become binding for LBX only if they are agreed upon by LBX in advance in writing or text form.

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Section 13 Force Majeure

• LBX is exempt from its obligation to perform under this contract to the extent that the failure to perform is due to the occurrence of force majeure events after the conclusion of the contract.
• Circumstances of force majeure include, for example, war, strikes, civil unrest, expropriations, fundamental changes in law, storms, floods, and other natural disasters, as well as other circumstances for which LBX is not responsible. These particularly include water damage, power outages and interruptions, or the unintentional destruction of data-carrying lines or infrastructure.
• Each contracting party shall immediately notify the other contracting party in writing of the occurrence of a force majeure event.

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§ 14 Term and Termination

• The contract start date and term are defined in the offer. Unless the contract is terminated 3 months prior to the expiration of the minimum contract term, it shall be extended indefinitely and can then be terminated with 3 months' notice to the end of the current calendar year.
• The parties' right to extraordinary termination for good cause remains unaffected. Good cause for extraordinary termination exists in particular if:
  
  • a party repeatedly breaches essential contractual obligations under this contract; essential contractual obligations include, in particular, the timely payment of fees.
  • a party commits a tort in connection with this contract;
  • a party ceases its business operations, in whole or in part, and the immediate continuation of the contract is not secured by a legal successor.
• Termination must be made in writing.
• Upon termination of the contract, for any reason whatsoever, the customer's contractual rights of use shall cease. The customer may request the return of stored data from LBX in a common digital format for up to one month after the contract's termination. After this one-month period, all data will be permanently deleted without further notice.

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§ 15 Non-Compete, Non-Solicitation

The parties mutually agree not to solicit or poach employees from the other party during the term of the framework agreement and for twelve months thereafter.

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§ 16 Miscellaneous

• This contract shall be governed exclusively by German law. The exclusive place of jurisdiction for any disputes arising from this contract shall be the registered office of LBX.
• No oral side agreements have been made. Amendments to this contract are only valid if agreed upon in writing by the contracting parties. This also applies to amendments to the written form clause itself.
• If any provision of this contract is or becomes invalid, the validity of the remaining provisions shall not be affected.

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