General terms and conditions of use

§ 1 Contracting party and scope

• These general terms and conditions of business and use (GTC) apply to all legal transactions between 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 by LBX as part of the use of the Software -Local Brand X Local Marketing Platform — (hereinafter “Software”) and related other services.
• These terms and conditions apply exclusively to customers who are entrepreneurs (§ 14 BGB), legal entity under public law or a special fund under public law. These terms and conditions apply exclusively, even if LBX provides its services without reservation in the knowledge of the customer's conflicting terms and conditions. LBX does not accept the customer's terms and conditions that differ in whole or in part from these terms and conditions, unless LBX has expressly agreed to them in writing beforehand. Individual agreements always have priority. The same applies insofar as offers from LBX indicate otherwise.
• According to Section 312 i (2) sentence 2 of the German Civil Code (BGB), LBX is not obliged to fulfill the information requirements in electronic business transactions in accordance with Section 312 i (1) No. 1 - 3 BGB.

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§ 2 Subjects of service

• LBX provides the software (§ 1 a) via the Internet, hereinafter “software transfer” and the provision of storage space on servers rented from LBX, hereinafter “provision of storage space” (software transfer and provision of storage space together “SaaS services”). LBX also provides work and services, in particular in the areas of software development, development, support and software maintenance of its own software.
• The detailed description of the services to be provided is derived from offers from LBX and their systems, which are also part of the contract. If nothing else has been agreed upon, only the functional description in the Knowledge Center (https://local-brandx.clickup.com) of the software is final.
• It is possible for the customer to order additional services from LBX and, unless otherwise stated in the underlying offer from LBX, is governed by these terms and conditions.
• LBX's offers 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 terms and conditions and the customer's IT systems are not the subject 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, unless the customer's legitimate interests conflict.

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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 detailed description of the software subject to the contract is defined in the respective LBX offer.

1. Software leasing
   1. The latest version of the software will be made available to the customer via the Internet for the duration of the agreed period for a fee. For this purpose, LBX makes the software available for retrieval on a server. The retrieval is carried out 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 contract period, LBX will adapt the services as necessary to market-relevant technical changes. The customer is not entitled to specific improvements or adjustments.
2. Allocation 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 250 megabytes per user. If the storage space is no longer sufficient to store the data, LBX will notify the customer of this. Subject to existing availability, the customer can expand 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 availability.
   3. LBX will take standard precautions against data loss and to prevent unauthorized access by third parties to the customer's data. For this purpose, LBX regularly makes a backup copy of the customer's data. The security measures are described in the Technical and Organizational Measures (TOM), which are part of the order processing agreement concluded between the parties.
3. accesses
   1. After the start of the contract, the customer receives access data for the administration area from LBX in order to be able to use the services 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 will document the identity of the user checks and their user data in a directory of its registered users (“named users”) together with the respective access code.
   3. The software must be used by at least the number of users specified in the LBX offer. This number of users must be purchased at least for the entire contract period (minimum purchase). A license is permanently assigned to a user (named user) and is used by the user permanently. It is not permitted to divide a license between several users. Licenses may be transferred to another user at any time, with the previous user losing 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 on the subsequent invoice. The calculation is always based on the actual number of users created, taking into account the minimum purchase booked, on the last day of the month.

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§ 4 Commissioning of additional services and additional expenses

Further services, such as individual adjustments, advice, 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 from LBX. If additional services are ordered, the following applies:

• If the customer wishes to change and/or extend services that have already been ordered, he must inform LBX of his request for change via the LBX ticket system.
• LBX is examining what effects the desired change will have, in particular with regard to estimated additional costs and time estimates.
• After examining the change request, LBX will explain to the customer its effects on the previous agreements. The presentation contains either a detailed proposal for implementing the change request or information as to why the change request cannot be implemented.
• LBX may refuse to carry out a change or extension request by the customer if these are not feasible or if LBX is unreasonable to implement them within the scope of operational performance. If LBX recognizes that the services to be provided cannot be carried out or can only be carried out with a delay as a result of the audit, LBX shall inform the customer of this. The customer decides whether to continue or end the change process.
• The customer can accept the proposal to implement LBX's change request in accordance with § 4 (3) via LBX's ticket system.
• Services provided by LBX 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 adverse deviations of the services from the agreed quality not identified by the customer or as a result of gross negligence are not notified to LBX, the services are considered 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 are considered to have been provided in accordance with the contract, provided that there are no discrepancies that would have been apparent if accepted in accordance with the obligation. LBX will inform the customer of this significance of its conduct as part of the request in accordance with this provision before acceptance. Insofar as LBX has fraudulently concealed discrepancies in quality, LBX cannot rely on the provisions of this paragraph.
• If no agreement is reached or if the amendment process ends for any other reason, the original scope of services remains the same.
• Dates affected by an amendment procedure shall be postponed as necessary, taking into account the duration of the review, the duration of the vote on the proposed amendment and, where applicable, the duration of the change requests to be carried out, plus a reasonable start-up period.
• The customer must bear the expenses arising from the change request. This includes in particular the review of the change request, the preparation of a change proposal and any downtimes. Expenses are calculated according to LBX's usual remuneration.
• LBX is only obliged to comply with the customer's requests for changes or extensions based on express consent.

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§ 5 Rights to use the software and other content

• The customer receives a non-exclusive, non-transferable right limited to the contract period to access the software via the Internet and to use it as intended. This also applies to all additional software developments that the customer has ordered from LBX in addition or retrospectively.
• The software may only be used by the customer's contractually agreed number of specified users (minimum purchase) (“named user”). If users exceed the booked licenses, 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 previous paragraphs or to have it used by third parties, in particular sub-companies. Use is only permitted within the company's own business.
• In particular, the customer is not allowed to reproduce or exploit the software or parts of it, whether through sale, rental or other types of exploitation.
• The customer grants LBX the rights to use all data that he transfers to the storage space provided in connection with the use of the software. This includes in particular the right to make the customer's data accessible via the Internet when queried, to reproduce and transmit it for this purpose, and to reproduce it for the purpose of data backup. The customer always remains the sole owner of this data and can demand the surrender or deletion of individual or all data at any time, in particular after termination of the contract, without any right of retention on the part of LBX. At the customer's option, the data will be released either by handing over data carriers or by sending it via a data network. The customer is also not entitled to receive software suitable for further use of the data.
• If LBX does not receive an order following a presentation to the customer, all rights of use, in particular the presentation documents and their content, remain with LBX; the customer is not entitled to continue using them — in any form — for its own or third-party purposes; documents provided by LBX must be returned to LBX immediately or verifiably delete them upon request by LBX.
• In particular, the customer must ensure that he has the necessary rights to use the fonts he uses as part of the software. This requires the font 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 assistance in the event of a functional malfunction of the software. 1st-level support, i.e. assistance with application issues, is not owed without a separate agreement from LBX and is the responsibility of the customer.
• LBX receives inquiries from the customer regarding the use of the software (§ 3) on weekdays between 9 a.m. and 5 p.m., via the ticket system provided and will answer them promptly if possible. Fault reports and errors can also be addressed 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 discovers an error in connection with the terms of the contract, this must be defined as precisely as possible by the customer. In particular, the following information should be provided as far as possible:
  • § 1 Contracting party and scope
  • description of the problem so that a classification can take place;
  • description of the functionality that should actually take place;
  • description of what exactly does not work;
  • description of when the error occurred for the first time;
  • Name of the device used (smartphone, tablet, PC, etc.);
  • mention of the operating system used and the corresponding version;
  • Name the browser used and the corresponding version;
  • If possible, a screenshot must be provided.
• Response time is the time that elapses between LBX receiving the problem report and the start of troubleshooting by an LBX employee. If additional information or activities are required to resolve the error and LBX has no access to this information or environment, the calculation of the troubleshooting time will be stopped for the period of response or approval by the customer. The moment the customer transmits this information or approval to LBX, the measurement of the troubleshooting time continues.
• 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 — a large proportion of 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 is based on the assignment to an error class (FK1, FK2, FK3, FK4) and is as defined below:
  
  Error class/ priority service level
  Priority Heavy response time Troubleshooting time
  1 — critical emergency 2 hours 8 hours
  2 — highly critical 4 hours 40 hours
  3 — normally not critical 1 day 20 working day
  4 — low insignificant 1 day next release/next patch

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§ 7 Interruption of availability

• Adjustments, changes and additions to the scope of services as well as measures aimed at identifying and correcting functional disorders will only lead to a temporary interruption of availability if this is absolutely necessary for technical reasons. Scheduled and announced maintenance work is not considered downtime. LBX carries out a scheduled maintenance window every 4th Friday (17:00 — 19:00) of the month. LBX will make every effort to announce special maintenance work at least 7 days before it starts.
• LBX strives to ensure a high level of availability of the services. The availability of the agreed services in accordance with § 3 is 99.5% per year excluding maintenance work, but availability must not be affected or interrupted for more than two calendar days in a row.

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§ 8 Customer's obligations to cooperate

• The customer supports LBX in fulfilling the contractually owed services at its own expense.
• At the beginning of each assignment, the customer will name LBX a permanent contact person and representative, including their contact details. For LBX, these are the exclusive contacts for agreements and agreements of all kinds for all questions relating to the legal framework of cooperation (in particular including additional assignments). At the request of LBX, the customer must confirm in writing that contacts and representatives to be appointed by him are fully authorized to make all decisions relating to the cooperation.
• The customer can replace the contact person and their representative with other persons at any time. Changes must be notified to LBX immediately in writing or by e-mail. When making changes, the customer will ensure that there are no disruptions in cooperation and that newly appointed persons contact persons have all the necessary information and expertise necessary for the smooth further course of the project.
• The customer ensures that all cooperation services necessary for the provision of the agreed service are provided in good time, in full and free of charge for LBX.
• If the customer discovers a loss of data, this must be reported to LBX immediately. In the event of data loss, LBX will restore the most recent backup. If the customer is responsible for the loss of data, he must reimburse LBX for the resulting expenses.
• If, despite an express recommendation by LBX and corresponding availability of computing capacity, the customer does not rent further computer services and should operating errors, malfunctions or interruptions of the software occur as a result of this lack of computing capacity, LBX is not liable insofar as this lack of computer power results in operating errors, faults or interruptions of the software.
• The customer undertakes not to store any data on the storage space provided that violates laws, regulatory requirements or the rights of third parties. If the customer recognizes that there has been a breach of this obligation, he must immediately inform LBX and prevent the breach. The customer will therefore indemnify LBX from all third-party claims upon first request.
• The customer is obliged to prevent unauthorized access by third parties to the protected areas of the software by taking appropriate measures. Passwords and access data must therefore be protected against this and kept secret. The customer will therefore also oblige its users to comply with the provisions and obligations applicable to the use of the contractual objects under this contract.
• Notwithstanding LBX's obligation to back up data, the customer himself is responsible for entering and maintaining the data required to use the services.
• Before storing it on the storage space provided, the customer will check his data for viruses or other harmful components and use state-of-the-art virus protection programs for this purpose.
• During the contract period, the customer must guarantee the necessary technical requirements for the use of the services. Otherwise, it may result in faulty operation for which LBX is not responsible. This applies in particular, but not exclusively, to:
  • Adequate bandwidth and quality of services, both on the customer's local network and on the customer's network operator's line;
  • VPN-enabled routers.
    
    LBX may separately inform the customer of further technical requirements before the contract is concluded.
• In the event of faults, functional failures or impairment of the services, the customer is obliged to inform LBX immediately and as precisely as possible. If the customer fails to make such a notification, Section 536c BGB applies accordingly. If access to the customer's access via remote maintenance is necessary to rectify the fault, he will provide LBX with this access.
• Insofar as the customer's data stored in the storage space provided contains personal data, the customer will conclude the order processing agreement with LBX.
• The customer undertakes to ensure that every user of the software complies with and accepts the terms of this contract, in particular the provisions of § 8.
• The customer is responsible for integrating service providers via the software itself. It is solely his responsibility whether or which third party providers he connects or commissions. A contractual relationship with the respective third party provider is solely the responsibility of the customer in this context. LBX only provides the appropriate infrastructure via the software. Please note that a contractual relationship is created directly between you and the respective service provider and LBX does not become a party to this effect. Only the contract and data protection agreements made between you and the service provider are decisive.
• The customer is responsible for creating and configuring content (pages, articles, service providers, templates, etc.). At the customer's request, LBX can support them for a fee. However, the customer alone is obliged to ensure the resulting quality assurance, i.e. review of the content. It is therefore the sole responsibility of the customer to ensure that all content is correctly provided or correctly configured. LBX only provides purely advisory support services here.

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§ 9 Charges

• The amount of the fees for the provision or provision of services and services is based on the underlying offer from LBX and is calculated from the start of the contract. The ongoing license fees for SaaS services must be paid every six months in advance (at January/July of one year). If a price is to be calculated for parts of a calendar month, this is calculated for each day at 1/30 of the monthly price
• When ordering additional services, the customer must pay 50% of the one-time project costs upon conclusion of the contract 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 assignments from LBX are calculated quarterly based on expenses at the end of the quarter. LBX's daily rates are based on an 8-hour day. Any additional expenditure is calculated on a pro rata basis for hours.
• 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, upon proof, bear all expenses such as travel and accommodation costs, expenses and third-party payment claims arising as part of the execution of the contract that LBX incur in connection with the execution of the contract. All travel expenses and other ancillary expenses that LBX incur when fulfilling the contract are also calculated separately. Unless otherwise agreed, travel costs/expenses and expenses arising from the execution of the order or provision of the service will be charged to the customer in addition to the agreed price. Travel time is considered working time. Travel by car costs 0.50€ per km driven. Unless otherwise agreed, travel times are charged at 75€ per hour. All other costs, such as train travel (2nd class), flight, accommodation, expenses, fees (e.g. for image rights, license fees, etc.), expenses, transport costs, material costs and all other third-party costs will be charged to the client.
• The customer is only entitled to use the services beyond the scope agreed in the offer with prior written consent from LBX. In the event of additional use without consent, LBX is entitled to charge additional fees based on the rates agreed in the offer.
• All prices are in euros plus the statutory value added tax valid at the time the service is provided.

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§ 10 Warranty and liability

• In accordance with the rules of tenancy law, LBX guarantees the agreed quality of the services and that the use of the services by the customer to the extent of the contract does not conflict with the rights of third parties.
• In the event of material defects, LBX shall, at its option, either provide the customer with a new, defect-free service item or remedy the defect within a reasonable period of time; removal of the defect shall also apply if LBX shows the customer reasonable options to avoid the effects of the defect (workaround).
• 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 on the characteristics of the services, technical data and specifications in the offer or service descriptions and other contract-relevant documents is not to be regarded as a guarantee (or assured feature) within the meaning of the Civil Code. LBX does not make warranty promises.
• In all cases of contractual and extracontractual liability, LBX shall pay compensation exclusively as follows:
  • unlimited in the event of intent and gross negligence;
  • in the event of slight negligence, only due to breach of an essential contractual obligation in the amount of foreseeable damage typical of the contract.
• LBX's no-fault liability in accordance with Section 536a Paragraph 1, 1st Alternative BGB due to defects that already exist at the time of conclusion of the contract is excluded.
• The limitations of liability in accordance with the previous paragraph do not apply to liability for personal injury and liability under the Product Liability Act.
• Customer claims arising from this contract arising from warranty and liability expire no later than 12 months from the due date and possible knowledge of the claim. This does not apply in the event of intent and gross negligence, personal injury, failure to fulfill independent guarantees and malice by LBX. The period begins at the end of the month in which the reason for claim arose and the sales partner became aware of the claim entitlement.

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§ 11 Deadlines

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 exempted from the obligation to perform under this contract insofar as the disruption of performance is due to the occurrence of force majeure following the conclusion of the contract.
• Force majeure includes war, strikes, riots, expropriations, cardinal changes in law, storms, floods and other natural disasters as well as other circumstances beyond LBX's control. These include in particular water ingress, power outages and interruptions or the destruction of data-carrying lines or infrastructure through no fault of their own.
• Each Contracting Party shall immediately and in writing notify the other Contracting Party of the occurrence of a case of force majeure.

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§ 13 Duration and termination

• The start and duration of the contract is 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 for the provision of the services are agreed by LBX, the relevant period of advance payment shall also be considered the minimum contract period. If a separate minimum contract period has also been agreed in accordance with the previous paragraph, the longest minimum contract period applies in each case. In the case of agreed advance payments, the contract is automatically extended after the expiry of the respective prepayment period by the period of the next advance payment, unless terminated no later than two weeks before the end of the prepayment period.
• The parties' right to extraordinary termination for good cause remains unaffected. There is an important reason for extraordinary termination in particular if
  • a party repeatedly breaches essential contractual obligations under this contract; the essential contractual obligations include in particular the timely payment of fees.
  • a party commits an act of tort in connection with this contract;
  • one party ceases business operations in whole or in part and the immediate continuation of the contract is not ensured by a legal successor.
• The termination must be made in writing.
• With the termination of the contract, for whatever reason, the customer's contractual rights of use end. Up to one month after termination of the contract, the customer may request that LBX return the stored data in a common digital format. After the expiry of the month period, all data will be permanently deleted without further notice.

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§ 14 Miscellaneous

• This contract is governed exclusively by German law to the exclusion of the UN sales law.
• In the event of 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 responsible for the registered office of LBX. LBX is also entitled to sue at the customer's head office.
• No additional oral agreements have been made. Amendments to this contract are only 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 rest of the contract.

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