(a)
These general terms and conditions apply to all legal transactions between Local Brand X GmbH, Mombacher Straße 4, D-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 other related services.
(b)
These terms and conditions apply exclusively to customers who are entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law. These terms and conditions apply exclusively, even if LBX provides its services without reservation in the knowledge of conflicting terms and conditions of the customer. Any terms and conditions of the customer that deviate in whole or in part from these terms and conditions will not be recognized by LBX, unless LBX has expressly agreed to them in writing beforehand. Individual agreements always have priority. The same applies if something else results from offers from LBX.
(c)
According to § 312 i Para. 2 Clause 2 of the German Civil Code (BGB), LBX is not obliged to fulfill the information requirements in electronic business transactions according to § 312 i Para. 1 No. 1 - 3 BGB.
(a)
LBX provides the software for a limited period (§ 1 a) via the Internet, hereinafter referred to as "software provision" and the provision of storage space on servers rented by LBX, hereinafter referred to as "provision of storage space" (software provision and provision of storage space jointly "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.
(b)
The more detailed description of the services to be provided results from offers from LBX and their attachments, which are also part of the contract. Unless otherwise agreed, only the functional description in the Knowledge Center (https://local-brand-x.clickup.com) of the software is ultimately decisive.
(c)
The customer can order additional services from LBX and, unless otherwise stated in the underlying offer from LBX, is based on these terms and conditions.
(d)
The offers from LBX are always subject to change and non-binding, unless they are marked as binding offers.
(e)
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 part of the contract.
(f)
The source code of the software or of individual components is not part of the contract.
(g)
LBX can use the help of subcontractors to provide the services owed, provided that this does not conflict with the legitimate interests of the customer.
The customer receives the rental of the software from LBX, including computing power and storage space for use via the Internet ("software provision"). The detailed description of the contractual software is defined in the respective LBX offer.
(a) Software transfer
(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 retrieval takes place via the Internet using a currently popular 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 will adapt the objects of performance to market-relevant technical changes as necessary. The customer has no right to specific improvements or adjustments.
(b) Allocation of storage space & other quotas
(1)
The customer is provided with storage space on a server to store his data. The customer can save up to 250 megabytes of data per user. If there is no longer enough storage space to store the data, LBX will notify the customer of this. Subject to 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. Uninterrupted availability owes not owe LBX.
(3)
LBX will take the usual precautions against data loss and to prevent unauthorized access by third parties to the customer's data. For this purpose, LBX regularly creates 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.
(4)
When booking the "Online.X" module, the customer receives a monthly e-mail volume of 100 e-mails per user. LBX will notify the customer if the volume is no longer sufficient. The customer can extend the volume for a fee.
(c) accesses
(1)
After the start of the contract, the customer receives the 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 check the identity of the user and document their user data in a directory of his 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 the LBX offer. This number of users must be accepted for at least the entire contract period (minimum purchase). A license is permanently assigned to a user (named user) and is used permanently by him. It is not permitted to split a license among several users. Licenses can be transferred to another user at any time, whereby the previous user loses his license.
(4)
If the customer creates more users than were commissioned in the offer (minimum purchase), the remaining number of users will be billed retrospectively by LBX in the subsequent invoice. The calculation is always based on the actually created number of users, taking into account the booked minimum purchase, on the last day of the month.
Further services, such as individual adjustments, advice, additional developments, etc. are agreed as part of the LBX offers or can also be commissioned by the customer after the conclusion of a contract as part of individual orders from LBX. In the event that additional services are commissioned, the following applies:
(1)
If the customer wishes to change and / or expand services that have already been commissioned, he must notify LBX of his change request via the LBX ticket system.
(2)
LBX checks what effects the desired change will have, especially with regard to estimated additional work and time estimates.
(3)
After examining the change request, LBX will explain its effects on the previous agreements to the customer. The statement contains either a detailed proposal for the implementation of the change request or information on why the change request cannot be implemented.
(4)
LBX can refuse to carry out a change or extension request by the customer if this is not feasible or if LBX cannot reasonably be expected to carry it out within the framework of operational efficiency. If LBX recognizes that services to be provided cannot be carried out or can only be carried out with a delay due to the check, LBX will inform the customer accordingly. The customer then decides whether the change process continues or ends.
(5)
The customer can accept the proposal for the implementation of the change request from LBX in accordance with Section 4 (3) via the LBX ticket system.
(6)
Services provided by LBX in accordance with Section 4 (5) are to be accepted by the customer. Acceptances by the customer must take place via the LBX ticket system. If disadvantageous deviations of the services from the agreed quality not recognized by the customer or as a result of gross negligence are not reported to LBX, the services are deemed to have been provided in accordance with the contract with regard to these unreported deviations. If the customer does not or not fully comply with his obligation to accept, the services are deemed to have been provided in accordance with the contract, provided that there are no deviations that would have been recognizable in a duly accepted acceptance. LBX will inform the customer of this importance of his behavior in the context of the request according to this regulation before acceptance. Insofar as LBX has fraudulently concealed deviations in quality, LBX cannot invoke the provisions of this paragraph.
(7)
If no agreement is reached or if the change procedure ends for any other reason, the original scope of services remains.
(8)
Dates affected by a change procedure will be postponed if necessary, taking into account the duration of the examination, 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 lead time.
(9)
The customer has to bear the expenses resulting from the change request. This includes in particular the examination of the change request, the creation of a change proposal and any downtime. The expenses are calculated according to the usual LBX remuneration.
(10)
LBX is only obliged to comply with the customer's requests for changes or extensions on the basis of express consent.
(a)
The customer receives a non-exclusive, non-transferable right limited 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 ordered from LBX.
(b)
The software may only be used by the contractually agreed number of specified users (minimum purchase) for the customer ("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.
(c)
The customer is not entitled to use the software beyond the rights granted in the preceding paragraphs or to have it used by third parties, in particular sub-companies. Use is only permitted within your own business.
(d)
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.
(e)
The customer grants LBX the necessary rights of use for the execution of the contract to all data that he transfers in connection with the use of the software on the storage space made available. This includes, in particular, the right to make the customer's data accessible when queries are made via the Internet, to reproduce and transmit them for this purpose, and to reproduce them 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 LBX having a right of retention. The data are released at the customer's option either by transferring data carriers or by sending them over a data network. The customer is not entitled to receive software suitable for further use of the data.
(f)
If LBX does not receive an order after a presentation from the customer, all rights of use, in particular the presentation documents and their content, remain with LBX; the customer is not entitled to use them - in whatever form - for their own or third-party purposes; Documents handed over by LBX must be returned to LBX immediately or verifiably deleted at LBX's request.
(g)
In particular, the customer must ensure that he has the necessary rights of use for the fonts used by him in the context of the software. The font is required as a server license for this.
(a)
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 on application issues, is not owed by LBX without a separate agreement and is the responsibility of the customer.
(b)
Inquiries from the customer about the use of the software (§ 3) are accepted by LBX on workdays between 9 a.m. and 5 p.m. via the ticket system provided and will answer them as soon 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(at)local-brand-x(dot)com .
(c)
If the customer discovers an error in connection with the subject matter of the contract, this must be defined as precisely as possible by the customer. In particular, the following information must be made available to:
(d)
Response time is the time that elapses between the receipt of the problem report at LBX and the beginning of the error correction by an LBX employee. If additional information or activities are required to solve the error and LBX does not have access to this information or environment, the calculation of the error correction time will be stopped for the period of the response or activation by the customer. As soon as the customer sends this information or activation to LBX, the measurement of the troubleshooting time continues.
(e)
The error classes and their priorities are defined as follows:
Error class priority | Significance of the impact |
|---|---|
1 - critical | Complete system failure; critical business process not possible |
2 - high | Part of the business processes affected; no workaround available |
3 – normal | Individual user affected; |
4 - low | No business process affected, no workaround required; minor / "cosmetic" troubleshooting is sufficient |
(f)
Unless otherwise agreed, the response and troubleshooting time is based on the assignment to an error class (FK1, FK2, FK3, FK4) and is defined as follows:
Error class / priority | Service level | ||
|---|---|---|---|
priority | Heaviness | reaction time | Troubleshooting time |
1 – critical | emergency | 2 Hours | 8 Hours |
2 – high | critical | 4 Hours | 40 Hours |
3 – normal | not critical | 1 Day | 20 Working days |
4 – low | insignificant | 1 day | next release / next patch |
(a)
Adjustments, changes and additions to the subjects of performance as well as measures that serve to identify and correct malfunctions will only lead to a temporary interruption of availability if this is absolutely necessary for technical reasons. Planned and announced maintenance work does not count as downtime. LBX carries out a scheduled maintenance window every 4th Friday (5pm - 7pm) of the month. LBX will endeavor to announce special maintenance work at least 7 days before it begins.
(b)
LBX strives to guarantee a high availability of the subjects of performance. The availability of the respectively agreed services according to § 3 is 99.5% as an annual average excluding maintenance work, but the availability must not be impaired or interrupted for more than two calendar days in a row.
(a)
The customer supports LBX in fulfilling the contractually owed services at their own expense.
(b)
At the beginning of each order, the customer will name a permanent contact person and deputy to LBX, including their contact details. For LBX, these are the exclusive contact persons for all kinds of arrangements and agreements for all questions relating to the legal framework of the cooperation (in particular also for additional orders). The customer has to assure LBX in writing that the contact person to be named by him and deputies are fully empowered to make all decisions relating to cooperation.
(c)
The customer can replace his designated contact person and his / her deputy with another person at any time. LBX must be notified of any changes immediately in writing or by email. When making changes, the customer will ensure that there are no disruptions in the cooperation and that newly named contact persons have all the necessary information and expertise that are necessary for a smooth further course of the project.
(d)
The customer ensures that all cooperation services necessary for the provision of the agreed service are provided on time, in full and free of charge for LBX.
(e)
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 latest backup. If the customer is responsible for the loss of data, he has to reimburse LBX for the resulting expenses.
(f)
If the customer does not rent additional computer services despite the express recommendation by LBX and the corresponding availability of computing capacity, and operating errors, disruptions or interruptions in the software should subsequently occur due to this lack of computing capacity, LBX is not liable in this respect, when this lack of computing power leads to operational errors, malfunctions or interruptions in the software.
(g)
The customer undertakes not to save any data on the storage space made available that violates laws, official requirements or the rights of third parties. If the customer recognizes that there has been a violation of this obligation, he must inform LBX immediately and prevent the violation. To this extent, the customer will release LBX from all third-party claims upon first request.
(h)
The customer is obliged to prevent unauthorized third party access to the protected areas of the software by taking suitable precautions. Passwords and access data must therefore be protected from this and kept secret. The customer will therefore also oblige his users to comply with the provisions and obligations applicable to the use of the contractual objects under this contract.
(i)
Without prejudice to LBX's obligation to back up data, the customer is responsible for entering and maintaining the data required for the use of the objects of performance.
(j)
The customer will check his data for viruses or other harmful components before saving it on the storage space provided and use appropriate virus protection programs for this purpose.
(k)
During the term of the contract, the customer must ensure the necessary technical requirements for the use of the objects of performance. Failure to do so could result in improper operation that the LBX cannot has to represent. This applies in particular, but not exclusively, to:
LBX can inform the customer about further technical requirements before the conclusion of the contract.
(l)
In the event of malfunctions, functional failures or impairment 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 applies accordingly. If access to the customer's access by means of remote maintenance is necessary to rectify the malfunction, he will enable LBX to access this.
(m)
Insofar as the customer's data stored on the storage space made available contain personal data, the customer will conclude the order processing agreement with the LBX.
(n)
The customer undertakes to ensure that every user of the software complies and accepts the provisions of this contract, in particular the provisions of § 8.
(o)
The customer is responsible for integrating service providers via the software. It is solely in his area of responsibility whether or which third-party providers are connected or commissioned. A contractual relationship with the respective third party provider is solely a matter for the customer in this context. LBX only provides the appropriate 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 contractual party in this context. The agreements made between you and the service provider regarding the contract and data protection are solely authoritative in this regard.
(p)
The customer is responsible for the creation and configuration of content (pages, articles, service providers, templates, etc.). At the request of the customer, LBX can support the customer in this regard. However, the customer alone is obligated 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 correctly provided or correctly configured. LBX provides here only purely advisory support services.
(a)
The amount of the fees for the provision or provision of the services and objects of performance results from the underlying offer from LBX and is calculated from the start of the contract. The ongoing license fees for SaaS services are payable semi-annually in advance (as of January/July of each 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.
(b)
When commissioning additional services, the customer has to pay 50% of the one-off project costs upon conclusion of the contract and the remaining 50% after acceptance of the service result.
(c)
Invoice amounts are due and payable within 30 days of receipt of the invoice without deduction.
(d)
Additional services and assignments from LBX are billed quarterly according to expenditure at the end of the quarter. The daily rates of LBX are based on an 8-hour day. Any additional effort will be charged proportionally according to the hour.
(e)
In the case of individual integrations of third-party systems / service providers / interfaces, a 20% maintenance fee is charged annually on the development costs.
(f)
Unless otherwise agreed, the customer bears all expenses such as travel and accommodation costs, expenses and third-party claims arising from the performance of the contract that LBX incurs in connection with the performance of the contract. All travel expenses for travel and other incidental expenses that LBX incurs in fulfilling the contract will also be charged separately. Unless otherwise agreed, travel costs / expenses and expenses incurred with the execution of the order or provision of the service will be charged to the customer in addition to the agreed price. Travel times are considered working time. For trips by car, € 0.50 per km driven. Unless otherwise agreed, travel times are charged at € 75 per hour. All other costs, such as rail travel (2nd class), flight, overnight stays, expenses, fees (e.g. for image rights, license fees, etc.), expenses, transport costs, material costs and all other third-party costs are charged to the client, unless otherwise agreed.
(g)
The customer is only entitled to use the objects of performance 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.
(h)
All prices are in euros plus the statutory sales tax applicable at the time the service is provided.
(a)
LBX performs according to the rules of tenancy laws Guarantee for the agreed quality of the objects of performance and that the use of the objects of performance by the customer to the contractual extent does not conflict with any third party rights.
(b)
In the event of material defects, LBX either provides the customer with a new, defect-free service item or removes the defect within a reasonable period of time; The removal of a defect is also valid if LBX shows the customer reasonable options to avoid the effects of the defect (workaround).
(c)
In the event of legal defects, LBX provides the customer with a legally flawless option of using the items of performance or of exchanged or changed equivalent items of performance at its discretion.
(d)
LBX is entitled to make the rectification of defects dependent on the customer not being in default of payment of his rent.
(e)
Information on properties of the objects of performance, technical data and specifications in the offer or the service descriptions as well as other contract-relevant documents are not to be regarded as a guarantee (or assured property) in the sense of the German Civil Code. Guarantee promises are not made by LBX.
(f)
In all cases of contractual and non-contractual liability, LBX pays damages exclusively as follows:
(g)
The strict liability of LBX according to § 536 a Para. 1, 1st alternative BGB due to defects that already exist at the time of the conclusion of the contract is excluded.
(h)
The limitations of liability in accordance with the previous paragraph do not apply to liability for bodily harm and liability under the Product Liability Act.
(i)
Claims of the customer from this contract from warranty and liability expire at the latest after 12 months from the due date and possible knowledge of the claim. This does not apply in the case of willful intent and gross negligence, as well as physical injury, failure to fulfill independent guarantees and fraudulent intent on the part of 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 eligibility.
Dates for the provision of services are only binding for LBX if they have been confirmed by LBX in advance in writing or in text form.
(a)
LBX is released from the obligation to perform under this contract if the disruption in performance is due to circumstances of force majeure after the conclusion of the contract.
(b)
Force majeure circumstances include war, strikes, riots, expropriations, cardinal changes in law, storms, floods and other natural disasters as well as other circumstances beyond the control of LBX. These include in particular water ingress, power failures and interruptions or the involuntary destruction of data-carrying lines or infrastructure.
(c)
Each contracting party must inform the other contracting party immediately and in writing of the occurrence of a case of force majeure.
(a)
The start and term of the contract is defined in the offer. The contract is automatically renewed for the same term if neither party cancels it with a notice period of 3 months to the end of the year (31.12.).
(b)
Insofar as advance payments for the provision of the objects of performance are agreed by LBX, the relevant period of advance payment shall also apply as the minimum contract period. If a separate minimum contract period is also agreed in accordance with the previous paragraph, the longest minimum contract period shall apply. In the case of agreed advance payments, the contract is automatically extended by the period of the next advance payment at the end of the respective advance payment period, in deviation from the preceding paragraph, unless terminated at least two weeks before the end of the advance payment period.
(c)
The right of the parties to extraordinary termination for good cause remains unaffected. An important reason for an extraordinary termination exists in particular
(d)
The termination must be made in writing.
(e)
With the termination of the contract, for whatever reason, the contractual rights of use of the customer end.
The customer can request that LBX surrender the stored data in a common digital format up to one month after termination of the contract. After the one-month period has expired, all data will be permanently deleted without further notice.
(a)
Only German law applies to this contract, excluding the UN Sales Convention.
(b)
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 to the court that is responsible for the headquarters of LBX. LBX is also entitled to sue at the customer's headquarters.
(c)
Oral side agreements have not been made. Changes to this contract are only valid if they are agreed in writing between the contracting parties. This also applies to changes to the written form clause itself.
(d)
Should a provision of this contract be or become ineffective, this does not affect the effectiveness of the rest of the contract.