General Terms and Conditions of LDB Löffler GmbH

§ 1 Validity of the conditions

1.1 These General Terms and Conditions (hereinafter also referred to as “GTC”) shall apply as the framework conditions for all contracts for services and performances between LDB Löffler GmbH (hereinafter referred to as “LDB” or “Company”) and our clients (hereinafter referred to as “Customers” or “Client”).

1.2 The subject of the contract is the provision of the agreed service. Deviating, conflicting or supplementary pre-formulated terms and conditions of the Customer shall not become part of the contract unless LDB expressly agrees to their validity.

1.3 Insofar as individual contractual agreements exist between LDB and the Customer which contradict the provisions of these GTC, the individual contractual provisions shall take precedence in case of doubt.

§ 2 Offer and conclusion of contract

2.1 Offers made by LDB are subject to change and non-binding until the contract is concluded. The contract is concluded by separate written agreement, online order or by the execution of the order by the LDB, as well as with the commencement of activities for the execution of the order by the LDB; such as, for example:

The coordination of the project definition (e.g. type and scope of the project, detailed explanations, scheduling, etc.), the setup of licenses, operating systems and user authorizations, the creation of project-related knowledge databases, documents/information, the application for and configuration of dial-in number(s), the setup for the presentation and evaluation of results, the setup of telephony, personnel planning and recruitment as well as personnel training.

2.2 Verbal ancillary agreements, in particular amendments or additions to the content of the contract, must be made in writing or in electronic form by e-mail to be effective. This also applies to the waiver of the aforementioned formal requirement itself.

2.3 Additional agreements with Customers or assurances to Customers which go beyond and/or deviate from the content of a written or electronic contract existing between LDB and the Customer require the consent of the management of LDB, in writing or in electronic form by e-mail message.

2.4 The offer may only be passed on to third parties in whole or in part by mutual written agreement.

§ 3 Remuneration, invoicing and payment modalities

3.1 LDB shall invoice its services in accordance with the contractual agreements. In case of doubt, the price stated in the order confirmation shall be deemed agreed. If the remuneration has not been contractually agreed separately, the remuneration shall be deemed to be agreed according to the current fixed price and package price of LDB.

3.2 In the case of continuous orders, LDB shall invoice its services monthly – at the end of each month – unless otherwise agreed. Insofar as the LDB has already provided services to be paid for by the Customer prior to the written conclusion of the contract, an invoice for these services shall be issued upon conclusion of the contract.

3.3 For services offered by LDB in monthly package quantities, the service quantities are provided pro rata temporis for contracts which do not begin at the beginning of the month and end at the end of the month.

3.4 The remuneration of LDB for IT services, e.g. any necessary programming, database modifications, subsequent configurations or installations of the telecommunications system after individual commissioning, shall be remunerated on a time and material basis. Such services must be agreed before implementation and must be ordered in writing by the Customer.

3.5 All LDB invoices are due for payment within 14 days of receipt by the Customer.

3.6 Unless otherwise agreed, all prices for services provided by LDB are subject to the statutory value added tax applicable at the time the service is provided.

3.7 If the Customer defaults on due payments, LDB shall be entitled to suspend its services until all due payments have been received. This shall not affect further rights of the LDB arising from the delay – in particular compensation for damages, withdrawal and termination.

3.8 The Customer shall only be entitled to offset its own counterclaims against outstanding claims of LDB if LDB does not dispute the respective counterclaims of the Customer or if the existence of the counterclaims has been legally established.

3.9 If the consumer price index for Germany published by the Federal Statistical Office on the basis of 2021 = 100 changes by at least 10% compared to the index published for the month in which the contract was concluded, either party may demand an adjustment of the agreed remuneration. The benchmark for this shall be the change in the index, insofar as this is equitable. The change to the respective remuneration shall take effect from the month following the request for change. This provision shall apply accordingly to any further index change compared to the last change in remuneration. Cost increases due to the cost of living and inflation are taken into account by an annual adjustment of the prices by the LDB on the basis of the cost of living index determined by the Federal Statistical Office.

3.10 Each party may also demand an adjustment of the agreed remuneration if the statutory minimum wage for Germany changes compared to the statutory minimum wage applicable for the month in which the contract is concluded. The benchmark for this shall be the change in the statutory minimum wage, insofar as this is equitable. The change in the respective remuneration shall take effect from the month following the request for change. This provision shall apply accordingly to any further change in the minimum wage compared to the last change in remuneration.

§ 4 Dates

4.1 Deadlines shall only be deemed to have been agreed as binding if they have been agreed in writing or confirmed by LDB.

4.2 In the event of force majeure and other unforeseeable, extraordinary circumstances for which LDB is not responsible (e.g. unforeseen difficulties in procuring materials, operational disruption, server failure, internet disruption, strike, lockout, lack of means of transportation, official intervention, energy supply difficulties and similar, even if they occur at upstream suppliers), any performance period shall be extended if LDB is prevented from issuing the contract on time as a result. If a case of force majeure occurs, LDB shall be obliged to inform the Customer of this immediately after becoming aware of it and to inform the Customer of how long the corresponding performance period is likely to be extended.

§ 5 Contract term and contract termination

5.1 Unless otherwise agreed, the contracts concluded with the LDB shall run for a fixed term.

Contracts concluded for an indefinite period can be terminated with a notice period of 3 months to the end of the month.

Contracts that have been agreed with a term shall be extended by the originally agreed term, but by a maximum of one year, as long as neither party terminates the contractual relationship. In this case, notice of termination must be received by the other contracting party at least 3 months before the end of the term.

5.2 Completed, free test phases of LDB products end automatically after 30 days without the need for a separate notice of termination.

5.3 Any notice of termination must be given in writing.

5.4. The right of termination for good cause remains unaffected by the parties. An important reason for termination of a contract exists for LDB in particular if the Customer does not meet its obligation to pay the remuneration despite a reminder and setting of a deadline; furthermore, if the Customer issues instructions to LDB which are demonstrably illegal. The right to terminate for good cause also exists if, in accordance with the EU General Data Protection Regulation and § 7 of the German Act Against Unfair Competition (UWG), verifiably invalid declarations of consent are used to fulfill the order and essential contractual obligations towards the LDB are violated. Essential contractual obligations are those obligations which protect the legal positions of the LDB which are essential to the contract and which the contract has to grant according to its content and purpose.

§ 6 Reimbursement of expenses and change request

6.1 The LDB shall maintain capacities such as personnel, technology, server performance, premises and activities for the provision of the contractually agreed service to the Customer for the duration of the contract. If the Customer terminates the contractual relationship extraordinarily, the LDB can demand from the Customer  demand reimbursement of expenses in accordance with the provisions set out in 6.3 and 6.4 below to compensate for unnecessary holding costs.

6.2 The same shall apply in the event of a reduction in the originally agreed project scope by the customer or in the event of a delay in the start of the contract by the customer.

6.3 In the event of extraordinary termination, the reimbursement of expenses shall amount to 100% of the contractually agreed remuneration which – in the event of continuation of the contractual relationship – would have been incurred from the time of termination until the ordinary end of the contract.

6.4 In the event of a reduction in the scope of the project, the reimbursement of expenses shall amount to 100% of that part of the contractually agreed remuneration which is lost for LDB as a result of the reduction from the time of the reduction until the ordinary end of the contract.

6.5 The customer is at liberty to prove that the damage is lower.

6.6 A claim for compensation does not exist if the extraordinary termination or reduction is based on circumstances for which LDB is responsible.

6.7 Customer requirements that go beyond the project definition listed in the respective order within the meaning of § 2.1 of the GTC shall constitute a change request.

Customer requirements that go beyond the original order content and therefore constitute a change request can be, for example: subsequent programming, database modifications, configuration and installation of telecommunications systems as well as subsequent training, process adjustments and quality assurance measures.

Expenses incurred by LDB for change requests shall be reimbursed to LDB by the customer against proof.

§ 7 Warranty and liability

7.1 The services of LDB are provided as services under civil law. No success is owed for these services.

7.2 In the event of a slightly negligent breach of an obligation which is essential for achieving the purpose of the contract (cardinal obligation), the liability of LDB shall be limited to the amount of damage which is foreseeable and typical for the type of service and in the event of damage resulting from injury to life, limb and health. Essential contractual obligations are those obligations which protect the legal positions of the Customer which are essential to the contract and which the contract must grant him according to its content and purpose. Essential contractual obligations are also those whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer has regularly relied and may rely. Otherwise, the pre-contractual, contractual and non-contractual liability of LDB shall be limited to intent and gross negligence, whereby the limitation of liability shall also apply in the event of fault on the part of a vicarious agent of LDB. The limitation of liability shall not apply to the liability of LDB under the Product Liability Act or other mandatory statutory liability.

§ 8 Confidentiality

8.1 The Customer and LDB undertake to treat confidentially all items which they receive or become aware of from the other contractual partner before or during the execution of the contract, which are legally protected or contain business or trade secrets or are designated as confidential, even after the end of the contract, unless they are publicly known without breach of the confidentiality obligation.

8.2 Business or trade secrets within the meaning of 8.1 are in particular all business and personal data, development, research and planning data, offers, responses to offers, inquiry documents and all related processes as well as all confidential information received orally or in writing, knowledge gained, technical know-how, work results, expert opinions and materials, samples, drawings, computer simulations, data, files, data carriers (objects) handed over or prepared.

8.3. Confidential within the meaning of 8.1 are all information, findings or materials which are brought in on the occasion or occasionally of an order or cooperation or which are identified or recognized as such, as well as those whose premature knowledge would benefit a competitor of LDB or a competitor of the respective customer, as well as all personal data within the meaning of the General Data Protection Regulation and the Federal Data Protection Act.

8.4. The Customer and LDB shall only make the contractual objects accessible to employees and other third parties who require access in order to carry out their business tasks. They shall instruct these persons about the confidentiality of the items and oblige them to maintain confidentiality in accordance with Art. 29 GDPR, Art. 32 Para. 4 GDPR.

§ 9 Data protection and commissioned data processing

9.1 The order is carried out as order processing. The Customer and Client and LDB as Contractor are each responsible within the meaning of the EU General Data Protection Regulation (GDPR). In addition to the main contract (offer), the legally required order processing agreement pursuant to Art. 28 para. 3 GDPR shall be agreed separately.

9.2 If the Customer commissions LDB with the processing of personal and other data in accordance with Art. 28 Para. 3 GDPR, the Customer shall also be responsible for compliance with data protection, competition and copyright regulations by LDB.

§ 10 Rights of use

10.1 Insofar as the content made available to the Customer by agreement is additionally protected by copyright law, LDB shall grant the Customer a simple, non-exclusive, non-transferable, non-licensable right to use the content for the contractually intended purpose for the duration of the contract.

10.2 The right of use includes the authorization to store evaluation results on a data carrier for the customer’s own internal company purposes and also to reproduce them, for example in printed form. Under no circumstances does the customer have the right to rent out or otherwise sublicense the acquired content, to reproduce it publicly by wire or wireless means or to make it available to third parties for a fee or free of charge.

10.3 Insofar as the Customer has access to online portals in accordance with the contract, the transfer of use to third parties, in particular for its own or third-party competitive purposes, is not permitted without the prior express consent of LDB.

10.4 The customer receives access to a personal login area. It is not permitted to enable use by unauthorized third parties by passing on passwords or creating user profiles. Employees of the customer are not “third parties” within the meaning of these provisions.

10.5 The Customer is obliged to set up its systems and programs and to use the resources made available to it in such a way that neither the security, integrity nor availability of the systems used by LDB to provide its services is impaired.

10.6 The LDB is entitled to block systems or access if the obligation under 10.2, 10.3, 10.4 and 10.5 is breached by the Customer or a third party.

Online portals after 10.3 are: CXBox, NAS data transfer drive.

§ 11 Amendment of the General Terms and Conditions

11.1 LDB is entitled to amend these General Terms and Conditions (GTC) at any time with effect for the future. LDB shall inform the Customer of an impending amendment by e-mail message at least 2 weeks before the planned entry into force of the GTC. The Customer may object to an amendment within six weeks of receipt of the notification in writing or in electronic form by email message. In the event that the customer does not object to an amendment or agrees to an amendment in writing or in electronic form by e-mail message, the amendment to the GTC shall take effect on the notified date of entry into force. If the Customer objects in due time, the contract shall be continued under the previous GTC. LDB will inform the Customer of the planned changes, the right to object, the deadline to be observed and the consequences of an objection if the deadline is not met.

11.2 LDB is entitled to amend the General Terms and Conditions, taking into account the interests of the Customer, if this is objectively justified. An amendment to the General Terms and Conditions is objectively justified if it can be ruled out that the Customer may be placed in a worse position by the amendments made after conclusion of the contract than at the time of conclusion of the contract, and it is ensured that only such changes in circumstances occurring after conclusion of the contract are taken into account which LDB has not foreseen, which were not initiated by LDB, over which LDB also has no influence, such as changes in the law and current case law, changes in technical framework conditions, the consideration of the state of the art in accordance with Art. 32 GDPR with the implementation of suitable technical and organizational measures, the discontinuation or modification of products and offers, other-, and which have led to a not insignificant disturbance of the equivalence relationship existing at the time of conclusion of the contract.

§ 12 Final provisions

12.1 If the Customer is a merchant, the place of jurisdiction for all disputes arising from or in connection with contracts between LDB and the Customer shall be Berlin Charlottenburg.

12.2 Contracts between LDB and the Customer shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

12.3 Should individual provisions of these terms and conditions be invalid or lose their validity due to circumstances occurring at a later date, this shall not affect the validity of the remaining provisions.

General Terms and Conditions LDB Löffler GmbH, Version: 04.02.2022.