Terms & Conditions

§ 1 Scope

(1) The business relationship between Loyalista GmbH, Friedlandstraße 58, 44869 Bochum (hereinafter referred to as the “Contractor”) and the customer (hereinafter referred to as the “Client”) shall be governed exclusively by the following General Terms and Conditions in the version valid at the time the contract is concluded.

(2) Deviating general terms and conditions of the Client shall not be recognised unless the Contractor expressly agrees to their applicability in writing.

(3) The Client warrants that it acts as an entrepreneur and not as a consumer. Pursuant to § 14 BGB, an entrepreneur is any natural or legal person or partnership with legal capacity that, when entering into the contract, acts in the exercise of its commercial or self-employed professional activity.

§ 2 Conclusion of the Contract

(1) The Client must register on the Contractor’s website. The Client then selects a package with a specific term. The Client submits a binding offer to conclude the contract by fully completing the booking process. The contract is concluded when the Contractor sends the Client an order confirmation by email.

(2) By concluding the contract, the Client accepts the Contractor’s General Terms and Conditions.

(3) The contract text is stored in compliance with data protection requirements. The Client may print or save the contract text.

§ 3 Payment Terms

(1) The payment methods shall be governed by the agreement between the parties.

(2) The due date shall be governed by the payment terms agreed in the contract. The Client shall already be in default upon missing the payment date. In this case, the Client shall pay the Contractor default interest for the year at a rate of 9 percentage points above the base interest rate.

(3) The Client’s obligation to pay default interest shall not exclude the Contractor from claiming further damages caused by default.

(4) The Client may only offset claims against the Contractor if its counterclaims have been finally established by a court, are undisputed or have been acknowledged by the Contractor. The Client may exercise a right of retention only insofar as the counterclaim is based on the same contractual relationship.

(5) The Contractor is entitled to change its prices and functionality with effect for the future. In the event of a price increase or restriction of functionality, the Client shall have a right of termination if it objects to the price increase within 30 days of notification thereof. The objection must be made in writing.

§ 4 Services / Obligations

(1) The Contractor shall only owe the services in accordance with the selected package or as separately agreed.

(2) Separate remuneration shall be due for any additional services. The Contractor shall inform the Client in advance of the costs of special services. In particular, the Client does not provide legal or tax advice. The Client itself is responsible for compliance with statutory provisions.

(3) The Client is obliged to cooperate and shall provide the Contractor with the necessary access, admission and all required information and data in an easily processable form in order to enable performance of the agreed services.

(4) The Contractor is entitled to engage subcontractors without requiring the Client’s consent.

(5) The Client is generally free to choose suitable means for fulfilling the order.

(6) The Client acknowledges that points cannot be redeemed if an account is inactive. However, points may continue to be collected.

(7) Agreed delivery periods shall be extended accordingly in the event of force majeure, failure of technical systems, illness of the Contractor’s personnel or breach of the Client’s obligations to cooperate. Claims for damages in this respect are excluded.

§ 5 Term, Termination

(1) The contract for a package for a cloud solution shall run for the initial contract term selected at the time of booking. Thereafter, the contract shall be renewed for the same term unless it is terminated with one month’s notice to the end of the term.

(2) The right to extraordinary termination for good cause shall remain unaffected. Good cause shall exist in particular if the Client is in default with an agreed payment despite a reminder or refuses to fulfil its obligations to cooperate.

(3) Termination must be made in writing in order to be effective. The decisive point in time for termination shall be receipt of the notice of termination.

§ 6 Liability

(1) Claims by the Client for damages are excluded. Excluded from this are claims by the Client for damages arising from injury to life, body or health of the customer, from the breach of essential contractual obligations (cardinal obligations), as well as liability for other damage based on an intentional or grossly negligent breach of duty by the Contractor, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment is necessary to achieve the purpose of the contract.

(2) In the event of a breach of essential contractual obligations, the Contractor shall only be liable for the typical, foreseeable damage if such damage was caused by ordinary negligence, unless the claims for damages by the Client arise from injury to life, body or health.

(3) The Contractor shall not be liable for loss of profit in the event of an outage or disruption. No liability is assumed in the event that the points account balance or other stored data is lost.

(4) The limitations pursuant to paragraphs 1 to 3 shall also apply for the benefit of the Contractor’s legal representatives and vicarious agents if claims are asserted directly against them.

§ 7 Special Conditions for Software Development

The following conditions shall apply in addition when services in the field of software development are commissioned:

(1) The Contractor shall provide warranty in accordance with the statutory provisions. The warranty period shall be reduced to one year. Colours, tones and other characteristics of the contractual service that are subject to subjective assessment and result from the Contractor’s creative freedom cannot be the subject of complaints for defects insofar as the Client has not provided exact and technically feasible instructions regarding such characteristics. The Contractor shall provide two rounds of corrections unless otherwise agreed with the Client. Such an agreement must be made in text form in order to be effective.

(2) The Client undertakes to notify defects without undue delay. A period of 14 days from delivery shall be deemed to constitute notification without undue delay. The Contractor is not required to remedy defects asserted at a later date. The Contractor shall not owe remedy of defects that are attributable to conduct or changes by the Client.

(3) The Contractor guarantees compatibility of the software only with common operating systems. The operating system installed on any hardware supplied shall be considered common; otherwise, depending on the agreement, Linux or Windows.

(4) The creation of an adapted version for other devices/systems must be agreed separately.

(5) The Client acquires a licence to the software. Resale and sublicensing are prohibited without the Contractor’s express consent.

(6) The costs of operating software/hardware shall be borne by the Client and are not part of the agreed remuneration.

(7) The Client undertakes to accept the software within 14 days of completion. After expiry of this period, acceptance shall be deemed granted unless justified defects have been asserted.

(8) Backups shall be created by the Client unless expressly agreed otherwise.

(9) The Client is responsible for compliance with data protection provisions when using data collection software and hardware.

(10) The Client has no claim to delivery of the source code.

§ 8 Special Conditions for Maintenance

The following conditions shall apply in addition when maintenance services are commissioned:

(1) Maintenance, administration and support services shall only be provided during the Contractor’s business hours. The Contractor undertakes to commence the handling of errors as well as the implementation of updates, upgrades or other installations promptly after being requested to do so by the Client.

(2) The Contractor is not obliged to provide maintenance that is impossible according to the state of the art or requires disproportionate effort. Programming services shall in particular be considered disproportionate if the third-party provider of software does not provide an update or if no update is available for an open-source solution. If additional expenses are incurred for carrying out the maintenance (e.g. procurement of additional software or hardware), the Contractor shall inform the Client in advance of the additional costs incurred.

(3) In the event of force majeure, illness or absence due to holiday, or deliberate causation of errors by the Client, the Contractor shall be released from the maintenance service. No claim for damages by the Client shall arise therefrom.

(4) The Contractor does not undertake permanent monitoring of the software. Disruptions and problems must be reported to the Contractor.

(5) The Client itself is responsible for creating backups unless expressly agreed otherwise. It is strongly recommended to create a backup before each deployment of the Contractor.

(6) The maintenance services relate only to the software provided by the Contractor. The correction of other content/software/systems/hardware is not owed.

§ 9 Updates

The Contractor endeavours to keep its cloud solution technically up to date. However, there is no entitlement to specific updates unless an express agreement to this effect has been concluded between the parties. If maintenance has been commissioned, § 8 shall apply.

§ 10 Copyright / Third-Party Rights

(1) Copyright in the content created, in particular the source code and texts/graphics, shall remain with the Contractor. Subject to full payment of the remuneration, the Client shall be granted an unrestricted, irrevocable and transferable right of use to the content without limitation in time or territory. The Client must comply with the licence terms of any third-party software or open-source software. In the event that software is rented, the right of use shall expire upon termination of the rental relationship.

(2) If the Client provides the Contractor with content for the provision of the services, the Client warrants that it possesses all corresponding rights required for such content. If the Contractor is held liable by third parties in this regard due to infringement of intellectual property rights, the Client shall indemnify the Contractor against claims by third parties.

(3) The Contractor is entitled to use trademarks and other protected content of the Client within the scope of the contractual purpose if this is necessary for performance of the contract.

§ 11 Reference Naming

The Contractor is entitled to name the Client as a reference free of charge on the website and on social networks unless expressly agreed otherwise. This also includes use of the Client’s logo.

§ 12 Confidentiality

(1) “Confidential Information” means all information, files and documents concerning business transactions of the respective other party that become known to the other party.

(2) Both parties undertake to maintain confidentiality regarding confidential information concerning the respective other party and to use such information only for the performance of this contract and the purpose pursued thereby.

(3) Both parties undertake to impose the confidentiality obligation on all employees and/or third parties who have access to the aforementioned business transactions.

(4) The confidentiality obligation pursuant to paragraph 2 shall not apply to information

• that was already known to the respective other party at the time the contract was concluded,
• that had already been published at the time of disclosure by the Client without this resulting from a breach of confidentiality by the respective other party,
• that the respective other party has expressly approved in writing for disclosure,
• that the respective other party has lawfully received from other sources without restrictions relating to confidentiality, provided that disclosure and use of such confidential information do not violate contractual agreements, statutory provisions or official orders,
• that the respective other party developed itself without access to the Client’s Confidential Information,
• that must be disclosed due to statutory duties to provide information, notification and/or publication or due to an official order.

§ 13 Data Protection

(1) The Client agrees to the storage of personal data within the framework of the business relationship with the Contractor in compliance with data protection laws, in particular the BDSG and the GDPR. Data shall not be disclosed to third parties unless this is necessary for performance of the contract or consent has been given.

(2) Insofar as the Client transmits data of third parties (e.g. customers, employees) or grants access thereto, the Client warrants that it has obtained consent from the third party and shall indemnify the Contractor against any claims in this regard.

(3) The rights of the Client or the person affected by the data processing arise in detail in particular from the following provisions of the GDPR:

• Article 7 para. 3 – Right to withdraw consent under data protection law
• Article 15 – Right of access by the data subject, right to confirmation and provision of a copy of the personal data
• Article 16 – Right to rectification
• Article 17 – Right to erasure (“right to be forgotten”)
• Article 18 – Right to restriction of processing
• Article 20 – Right to data portability
• Article 21 – Right to object
• Article 22 – Right not to be subject to a decision based solely on automated processing – including profiling
• Article 77 – Right to lodge a complaint with a supervisory authority

(4) To exercise the rights, the Client or the data subject is requested to contact the Contractor by email or, in the event of a complaint, the competent supervisory authority.

(5) The Contractor warrants that it has implemented appropriate technical and organisational measures to ensure the security of personal data and reduce the risk to data subjects.

(6) At the Contractor’s request, the Client undertakes to enter into a data processing agreement. The Client shall not bear any costs for preparation of the agreement.

(7) The Contractor points out that data of the Client’s customers is analysed anonymously for statistical purposes. The Client is responsible for informing its customers accordingly.

(8) In all other respects, reference is made to the privacy policy on the Contractor’s website.

§ 14 Final Provisions

(1) Contracts between the Contractor and the Clients shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The statutory provisions limiting the choice of law and the applicability of mandatory provisions, in particular those of the state in which the Client as a consumer has its habitual residence, shall remain unaffected.

(2) The place of jurisdiction and place of performance for all disputes arising from contractual relationships between the Client and the Contractor shall be the Contractor’s registered office in Bochum.

(3) The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. The invalid provisions shall be replaced, where available, by the statutory provisions. However, insofar as this would constitute unreasonable hardship for one of the contracting parties, the contract as a whole shall become invalid.