General Terms and Conditions

This English version is a courtesy translation. Only the German version is legally binding.

Table of Contents

A. General Terms and Conditions

1. Scope of Application
2. Services of the Provider
3. Changes to Services
4. Conclusion of the Contract
5. Grant of Rights of Use by the Provider
6. Grant of Rights of Use by the Customer
7. Obligations of the Customer
8. Moderation and Restriction of Content
9. Remuneration and Terms of Payment
10. Contract Term and Termination of the Contract
11. Liability for Defects (Mängelhaftung)
12. Liability
13. Indemnification (Haftungsfreistellung)
14. Confidentiality
15. Amendment of the GTC
16. Applicable Law, Place of Jurisdiction (Gerichtsstand)

A. General Terms and Conditions

1) Scope of Application

1.1 These General Terms and Conditions (hereinafter “GTC”) of FSFM GmbH (hereinafter “we”) apply to all contracts for the provision of services in the field of Software-as-a-Service (hereinafter “SaaS”) that you, as an entrepreneur (Unternehmer) (hereinafter “Customer”), conclude with us with regard to the services described on our website. The subject matter of the contract is the provision of software (hereinafter “Software”) in digital form via the internet, in return for payment and limited in time to the contract term, as well as the provision of storage space on our servers. We hereby object to the inclusion of your own terms and conditions, unless we have agreed otherwise with you in this respect.

1.2 You are an entrepreneur within the meaning of these GTC as a natural or legal person or as a partnership with legal capacity (rechtsfähige Personengesellschaft) that, when concluding a legal transaction, acts in the exercise of your commercial or independent professional activity.

1.3 Our Software may contain links to services of third-party providers. These GTC do not apply to such services that are provided not by us but by a third-party provider. This also applies if the services are provided free of charge and/or if registration with us is required for their use. For these services, only the terms and conditions used by the third-party provider or the statutory provisions apply in the relationship between you and the third-party provider. In this respect, we merely facilitate technical access to these services.

2) Services of the Provider

2.1 We provide you with Software in digital form via the internet for the duration of the agreed contract term. For this purpose, we give you access to the Software, which remains on our server. The scope of functions and the technical specifications of the Software are described in more detail in the service description (Leistungsbeschreibung) on our website. We owe only the provision of the Software with the functionalities defined in more detail in the service description. In particular, we do not owe the establishment and maintenance of the data connection between your IT system and our server.

2.2 Our Software is updated by us at irregular intervals. Accordingly, you only receive a right of use (Nutzungsrecht) to the Software in its respective current version. By contrast, you have no claim to bringing about a particular state of the Software.

2.3 We provide you with limited storage space on our servers for the use of the Software. The scope of the storage space is described in more detail in the service description on our website.

2.4 The services of the provider are offered subject to availability. Availability of 100 percent cannot be achieved technically and can therefore not be guaranteed to the customer by the provider. The provider does, however, endeavour to keep the service available as constantly as possible. In particular, maintenance, security or capacity concerns as well as events that are not within the provider’s sphere of control (disruptions of public communication networks, power failures, etc.) may lead to disruptions or to the temporary shutdown of the service.

2.5 We take measures for data backup that correspond to the state of the art. However, we are not subject to any duty of safekeeping or custody (Verwahrungs- oder Obhutspflicht). You yourself are responsible for adequate data backup.

2.6 We make an operating manual available to you in electronic form.

2.7 Unless otherwise stated in the service description on our website, we do not owe you any support that goes beyond our contractual obligation to maintain the Software.

2.8 Insofar as we also provide you with AI-supported functions in our Software, the following provisions apply in addition:

2.8.1 We do not owe a result in the sense of a particular quality, correctness of content, completeness or usability of the generated results, as these are based on probabilistic models and depend on the quality, completeness and up-to-dateness of the data provided by you as well as of the publicly accessible data sources used by our Software. In particular, owing to the way probabilistic AI models function, differing results may be generated at different points in time despite identical inputs.

2.8.2 Unless otherwise agreed between us, we do not owe exclusivity of the results. We expressly point out to you that overlaps between the results generated for different customers are possible, as the Software works on the basis of publicly accessible data sources and several customers may define comparable parameters.

2.8.3 The results generated with the Software are made available to you “as is” (wie besehen). We assume no guarantee with regard to the correctness of content, completeness, suitability or usability of the generated results, unless expressly agreed otherwise between us. You are obliged to check the generated results on your own responsibility and to ensure their suitability for the intended purpose.

2.8.4 We are entitled to use AI models and systems of third-party providers in the course of providing the services. We ensure that the third-party providers are contractually obliged to comply with the requirements of data protection law. A transfer of your personal data to third-party providers outside the EU/EEA takes place only in compliance with the statutory requirements.

3) Changes to Services

3.1 We reserve the right to change the services offered by us or to offer different services, unless this cannot reasonably be expected of you (nicht zumutbar).

3.2 In addition, we reserve the right to change the services offered by us or to offer different services,

• insofar as we are obliged to do so due to a change in the legal situation;
• insofar as we thereby comply with a court judgment or an official decision directed against us;
• insofar as the respective change is necessary to close existing security gaps;
• if the change is merely advantageous for you; or
• if the change is of a purely technical or procedural nature without material effects for you.

3.3 Changes with merely insignificant influence on our services do not constitute changes to services within the meaning of this clause. This applies in particular to changes of a purely graphical nature and the mere change of the arrangement of functions.

4) Conclusion of the Contract

4.1 The services described on our website do not constitute binding offers on our part, but serve to enable you to submit a binding offer.

4.2 You can submit the offer via the online order form provided on our website. In doing so, after entering your personal data, you submit a legally binding contractual offer with regard to the selected services by clicking the button that concludes the ordering process.

4.3 We can accept your offer within five days

• by sending you a written order confirmation or an order confirmation in text form (Textform) (fax or e-mail), whereby in this respect the receipt of the order confirmation by you is decisive, or
• by requesting you to pay after you have placed your order.

If several of the aforementioned alternatives exist, the contract is concluded at the point in time at which one of the aforementioned alternatives first occurs. The period for accepting the offer begins on the day after the offer is sent by you and ends at the expiry of the fifth day following the sending of the offer. If we do not accept your offer within the aforementioned period, this is deemed a rejection of the offer, with the consequence that you are no longer bound by your declaration of intent (Willenserklärung).

4.4 When an offer is submitted via the provider’s online order form, the contract text is stored by the provider after conclusion of the contract and transmitted to the customer in text form (e.g. e-mail, fax or letter) after the customer has sent its order. The provider does not make the contract text accessible beyond this. If the customer has set up a user account for the provider’s website before sending its order, the order data are archived on the provider’s website and can be retrieved by the customer free of charge via its password-protected user account by entering the corresponding login data.

4.5 Before bindingly submitting the order via our online order form, you can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better identifying input errors can be the zoom function of your browser, with the help of which the display on the screen is enlarged. Within the electronic ordering process, you can correct your entries using the usual keyboard and mouse functions until you click the button that concludes the ordering process.

4.6 The German language is available to you for the conclusion of the contract.

4.7 Order processing generally takes place automatically by e-mail. You must ensure that the e-mail address you provided for order processing is correct, so that you can receive the e-mails sent by us at this address.

5) Grant of Rights of Use by the Provider

5.1 We are the holder of all rights of use that are required for the provision of the Software. Unless otherwise stated in the service description on our website, we grant you the non-exclusive, non-transferable right, limited in time to the duration of the contract, to use the Software for business purposes within the framework of these GTC. Any use of the Software beyond this is not permitted.

5.2 Insofar as we provide AI-supported functions to fulfil our contractual obligations, we point out to you that, as a rule, no protective rights, in particular no copyrights, arise in the results generated through the use of the Software. Insofar as rights nevertheless arise in the generated results, we transfer to you a simple right of use (einfaches Nutzungsrecht) in the generated results in accordance with the preceding provisions on the grant of rights of use by us. You may also pass the generated results on to third parties.

6) Grant of Rights of Use by the Customer

We are entitled to use content and information that you make available to us for the service within the scope of our contractual obligations and whose processing is necessary for the proper provision of the services. You grant us, free of charge, non-exclusively and limited to the duration of the contract, the rights of use required for this, in particular the right of permanent retention and storage, the right of reproduction and the right of adaptation, and you warrant that you are entitled to grant these rights of use.

7) Obligations of the Customer

7.1 You ensure that the hardware and software used by you, including workstation computers, routers, data communication equipment, etc., meets the minimum technical requirements for the use of the Software version currently offered by us.

7.2 You are obliged to protect the access data made available to you against access by third parties in accordance with the state of the art and to keep them safe. You ensure that use takes place only to the contractually agreed extent. Unauthorised access by third parties must be notified to us without undue delay (unverzüglich).

7.3 You may not store on the storage space made available by us any data whose use violates applicable law, official requirements or orders, rights of third parties or agreements with third parties.

7.4 The content stored by you on the storage space designated for you may be protected under data protection law. You check on your own responsibility whether your use of personal data satisfies the requirements of data protection law.

7.5 You must, on your own responsibility, regularly carry out appropriate data backups.

7.6 You are obliged to check your data and information for viruses or other harmful components before entering them and to use measures corresponding to the state of the art (e.g. virus protection programs) for this purpose.

7.7 You ensure that programs, scripts or the like installed by you do not endanger the operation of our server or communication network or the security and integrity of other data stored on our servers.

7.8 If programs, scripts or the like installed by you endanger or impair the operation of our server or our communication network or the security and integrity of other data stored on our servers, we may deactivate or uninstall these programs, scripts, etc. If the elimination of the endangerment or impairment so requires, we are also entitled to interrupt the connection of the content stored on the server to the internet. We will inform you of this measure without undue delay.

7.9 The processing of personal data revealing racial and ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, as well as the processing of genetic data, biometric data for the purpose of uniquely identifying a person, health data or data concerning the sex life or sexual orientation of a natural person, is prohibited.

7.10 Insofar as we also provide you with AI-supported functions in our Software, the following provisions apply in addition:

7.10.1 The results generated for you may, owing to automated data processing, contain personal data even if you have not entered such data. You are obliged, before using the generated results outside the Software, to check them on your own responsibility for personal data or trade secrets of third parties as well as for the legal basis required for the use of these data. Furthermore, you are obliged not to enter any personal data or trade secrets of third parties into our Software, insofar as this is not strictly necessary for the contractually agreed purpose of use and you are entitled to process these data.

7.10.2 You are obliged, with regard to the

• statutory labelling obligations for AI-generated content applicable in each case when further using the generated results,
• information obligations towards data subjects,

to comply with them.

Upon request, we will provide you with the information required for the fulfilment of these obligations.

7.10.3 You are aware that, in exceptional cases, owing to the way AI models function, our Software may deliver incorrect or incomplete results (so-called “hallucinations”). You undertake to check the results generated by the Software for plausibility and correctness before further using them.

8) Moderation and Restriction of Content

8.1 In principle, we are not obliged to proactively check the content posted by you for its lawfulness or compatibility with the rights of third parties or these GTC. We nevertheless reserve the right, in individual cases and on our own initiative, to check your content for its lawfulness and, in the event of established violations, to take measures in accordance with the following provisions.

8.2 Customers and affected third parties can report presumably unlawful content to us using the contact information in the legal notice (Impressum) (e.g. by e-mail). We are free to forward the content of a report to you if you posted the reported content. The identity of the reporting person will be disclosed to you only if this is absolutely necessary.

8.3 In the case of reports and in the course of any checks carried out on our own initiative, a human content review takes place in principle. In individual cases, automated technical review procedures may be used in addition.

8.4 If, upon a report or in the course of a check on our own initiative, the unlawfulness of content published by you is established, we are entitled, even without prior announcement or contact, to take one or more of the following measures at our reasonable discretion (billiges Ermessen):

• warning you as the publishing customer,
• temporary blocking or permanent deletion of the content concerned,
• temporary or permanent suspension of the contractually assumed obligations,
• termination of the contractual relationship (ordinary termination or termination for good cause [außerordentliche Kündigung aus wichtigem Grund]).

8.5 When choosing the measures to be taken, we will take into account the principles of proportionality and weigh your interests as the affected customer against our own interests in the unhindered, undisturbed and sound continuation of our business activities. Criteria that are taken into account when imposing a measure are:

• the message and significance of the specific content and its potential for infringement or endangerment,
• the frequency of the publication of impermissible content by you,
• the ratio of the publication of impermissible content by you to your other use of the services,
• where discernible, the intentions pursued by you with the publication of impermissible content,
• where discernible, the existence and degree of your fault.

8.6 If you frequently submit manifestly unfounded reports or complaints, we will, after a prior warning, suspend the processing of reports and complaints from you for a reasonable period.

9) Remuneration and Terms of Payment

9.1 Unless otherwise stated in our service description, the prices stated are net prices, which apply plus the statutory value added tax.

9.2 The payment options and the payment modalities are communicated to you on our website.

9.3 The remuneration is invoiced by us in advance for the agreed service period and can be paid by you by bank transfer to our specified bank account. Unless otherwise stated in the content of the invoice, the invoice amount is due for payment immediately.

9.4 If a payment method offered via the payment service “Stripe” is selected, payment processing is carried out via the payment service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland (hereinafter “Stripe”). We inform you on our website of the individual payment methods offered via Stripe. For the processing of payments, Stripe may make use of further payment services, for which special payment terms may apply, of which you may be notified separately. Further information on Stripe is available on the internet at https://stripe.com/de.

10) Contract Term and Termination of the Contract

10.1 The contract is concluded for an indefinite period, but at least for the duration of our first billing interval (Abrechnungsintervall) (minimum term [Mindestlaufzeit]). You can terminate the contract during the minimum term at any time with effect from the end of the minimum term and, after the minimum term has expired, at any time with effect from the end of a further billing interval of ours. The respective billing intervals are set out in the service description on our website.

10.2 The right to termination for good cause remains unaffected. Good cause exists if, taking into account all circumstances of the individual case and weighing the interests of both parties, the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period (Kündigungsfrist).

10.3 Terminations can be made in writing, in text form (e.g. by e-mail) or in electronic form via the termination facility provided by the provider on its website (cancellation button [Kündigungsbutton]).

10.4 After termination of the contract subject to charges, you can still access certain free basic functions of your user account, as shown in our service description, until the contract is finally terminated. This does not apply if, according to its content, the termination has ended the contract completely from the outset. After complete termination of the contract, you lose access to your user account. Furthermore, upon termination of the contract, our obligation to store the data posted by you also ceases.

11.0) Liability for Defects

11.0.1 You must notify us of any defects, disruptions or damage that occur without undue delay.

11.0.2 We exclude the warranty (Gewährleistung) for merely insignificant reductions in the fitness of the service.

11.0.3 Our liability irrespective of fault (verschuldensunabhängige Haftung) pursuant to Section 536a(1) German Civil Code (BGB) for defects that already existed at the time of conclusion of the contract is excluded.

11.0.4 A termination by you on the grounds that contractual use has not been granted is only permissible once we have had sufficient opportunity to remedy the defects and this has failed. The remedy of defects is only to be regarded as having failed if it is impossible, if it is refused by us or delayed in an unreasonable manner, if there are justified doubts regarding the prospects of success, or if, for other reasons, it cannot reasonably be expected of you as the customer.

12) Liability

We are liable to you for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows:

12.1 We are liable without limitation on any legal ground

• in the event of intent or gross negligence,
• in the event of intentional or negligent injury to life, body or health,
• on the basis of a promise of guarantee (Garantieversprechen), unless otherwise provided in this respect,
• on the basis of mandatory liability, such as under the German Product Liability Act (Produkthaftungsgesetz).

12.2 If we negligently breach a material contractual obligation (wesentliche Vertragspflicht), our liability is limited to the foreseeable damage typical for the contract, unless we are liable without limitation in accordance with the preceding clause. Material contractual obligations are obligations that the contract imposes on us according to its content in order to achieve the purpose of the contract, whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance you may regularly rely. Otherwise, liability on our part is excluded, unless we are liable without limitation in accordance with the preceding clause.

12.3 The above liability provisions also apply with regard to our liability for our vicarious agents (Erfüllungsgehilfen) and legal representatives.

13) Indemnification

You indemnify us against all claims asserted against us by other customers or other third parties on account of the infringement of their rights due to content posted by you or due to your other use. In this respect, you also bear the necessary costs of legal defence, including all court and attorney’s fees in the statutory amount. This does not apply if you are not responsible (zu vertreten) for the infringement. In the event of a claim by third parties, you are obliged to provide us without undue delay, truthfully and completely with all information that is necessary for examining the claims and for a defence.

14) Confidentiality

We undertake to maintain secrecy about all confidential information of which we obtain knowledge in connection with this contract and its performance, and not to disclose it to third parties. Confidential information is information that is marked as confidential or whose confidentiality follows from the circumstances, irrespective of whether it has been communicated in written, electronic, embodied or oral form. The confidentiality obligation does not apply insofar as we are obliged to disclose the confidential information by law or on the basis of a final and binding (bestands- bzw. rechtskräftig) official or court decision.

15) Amendment of the GTC

15.1 We reserve the right to amend these GTC at any time without stating reasons, unless this cannot reasonably be expected of you. We will notify you of amendments to the GTC in good time in text form. If you do not object to the validity of the new GTC within a period of four weeks after the notification, the amended GTC are deemed accepted by you. In the notification, we will inform you of your right to object and of the significance of the objection period.

15.2 In addition, we reserve the right to amend these GTC

• insofar as we are obliged to do so due to a change in the legal situation;
• insofar as we thereby comply with a court judgment or an official decision directed against us;
• insofar as we introduce additional, entirely new services, offerings or service elements that require a service description in the GTC, unless the existing usage relationship is thereby changed to your disadvantage;
• if the change is merely advantageous for you; or
• if the change is required for purely technical or procedural reasons, unless it has material effects for you.

15.3 Your right of termination remains unaffected by this.

16) Applicable Law, Place of Jurisdiction

16.1 The law of the Federal Republic of Germany applies to all legal relationships between you and us.

16.2 If you act as a merchant (Kaufmann), a legal entity under public law (juristische Person des öffentlichen Rechts) or a special fund under public law (öffentlich-rechtliches Sondervermögen) with your registered office in the sovereign territory of the Federal Republic of Germany, our place of business is the exclusive place of jurisdiction for all disputes arising from this contract. If your registered office is outside the sovereign territory of the Federal Republic of Germany, our place of business is the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims arising from the contract can be attributed to your professional or commercial activity. In the aforementioned cases, however, we are in any event entitled to bring an action before the court at your registered office.