Terms of Service

1. Subject of the Contract

1. The Terms of Service for the Mobile2b digitalization platform govern the legal relationship between Mobile2b GmbH ("Provider") and business customers within the meaning of §14 BGB (hereinafter referred to as "Customers").

2. Customer/User Account

1. To use Mobile2b, a user account must be created. During the registration process, the Customer confirms these Terms of Service and the Provider's Privacy Policy. This creates a contract for the use of Mobile2b. The Customer is given the opportunity to test the software for 14 days free of charge and without obligation—with full functionality, without automatic renewal, and without any further obligation. A paid contract is only concluded through a written order/confirmation by the Customer. Additionally, a feature will soon be provided in the software that allows the Customer to activate the account for a fee themselves.
2. Registration is only permitted by or on behalf of entrepreneurs within the meaning of §14 BGB.

3. Availability of the Software

The Provider informs the Customer that restrictions or impairments of the provided services may occur that are outside the Provider's control. These include technical conditions of the internet not influenced by the Provider and force majeure (e.g., strikes, natural disasters, fire, terrorist attacks). The hardware and software used by the Customer and their technical infrastructure can also influence the Provider's services. If such circumstances affect the availability or functionality of the services provided by the Provider, this has no impact on the contractual conformity of the provided services. The interface for the contractually owed SaaS services and services is the transition point into the internet of the data center used by the Provider.

4. Customer Obligations When Using Mobile2b

1. The Customer must comply with laws and regulations when using Mobile2b. It is prohibited to carry out unfair business practices with Mobile2b or to commit administrative offenses or facilitate their commission.
2. If the Customer integrates their own graphics, videos, content, or other protected material into Mobile2b, they must have the necessary copyrights, trademark rights, design protection rights, or sufficient licensing rights.
3. If a third party asserts a legal violation against the Provider based on at least slightly negligent behavior by the Customer, each party shall indemnify the other from all resulting costs, particularly claims for damages, legal costs, and the costs of reasonable legal defense.
4. The Customer is obliged to report software defects to the Provider immediately. In doing so, they will consider the Provider's instructions for problem analysis as far as reasonable and forward all available information necessary for defect elimination to the Provider.
5. To use the software, the system requirements resulting from the product description or the offer must be met by the Customer. The Customer is solely responsible for this.
6. The Customer must keep the provided access data confidential and ensure that any employees who are provided with access data do the same. The Provider's services must not be made available to third parties unless expressly agreed upon by the parties.

5. Customer Usage Rights

1. The Provider grants the Customer the simple, non-transferable right to use Mobile2b for their own business purposes within the company of the contracting partner in accordance with these Terms of Service, limited to the contract duration.
2. The Provider expressly reserves the right to decide at its sole discretion on the offering of individual functionalities of the platform. If essential functionalities are no longer available to the Customer, the Customer is granted a special termination right by the Provider.
3. The Provider expressly reserves the right to decide at its sole discretion on the offering of individual functionalities of the platform. If essential functionalities are no longer available to the Customer, the Customer is granted a special termination right by the Provider.
4. The Customer acknowledges and agrees that the form and nature of Mobile2b may change during the contract term. This may be the case, for example, if:
   1. New legal or regulatory requirements necessitate a change,
   2. The agreed services no longer correspond to the current state of technology, security regulations, or data protection or their operability is no longer guaranteed, or
   3. Agreed services are wholly or partially replaced by equivalent or superior services, the agreed target characteristics remain essentially unchanged, and the associated service change is reasonable.
5. The software provided to the Customer undergoes regular automatic updates from the Provider. These updates serve to improve, enhance, and further develop the offering and may consist of bug fixes, improved functions, or entirely new versions. The Customer agrees to receive and use corresponding updates as part of the service.
6. Licenses acquired by the Customer are to be used in their own or affiliated companies. Affiliated companies are understood to be affiliated companies according to §15 AktG.

6. Free Test Accounts

1. The use of Mobile2b as a test account is possible free of charge for a period of 14 days. Termination by the Customer is not required. After the expiration of the 14-day free trial period, the platform is locked for further use. By upgrading to a paid version at any time, the lock can be lifted without data loss, and the account can be reactivated.
2. Free test accounts that are not upgraded to a paid account over a period of three months may be deleted by the Provider. The data created in a test account and the data generated by using Mobile2b are permanently lost in the process.
3. In the context of free use of Mobile2b, the Provider is not obliged to remedy defects.

7. Rights to Data Processing and Data Backup

1. In the context of operating Mobile2b, the Provider collects only the data that is absolutely necessary for the operation of the platform. Further information can be found in the Privacy Policy at https://www.mobile2b.com/privacy
2. The Customer grants the Provider the right to duplicate the data to be stored by the Provider for the Customer for the purposes of contract execution, as far as this is necessary to provide the services owed under this contract. The Provider is also entitled to keep the data in a backup system or separate backup data center. To eliminate disturbances, the Provider is also entitled to make changes to the data structure or data format.
3. The Provider regularly backs up the Customer's data on a backup server for which the Provider is responsible.
4. If and insofar as the Customer processes or has processed personal data on IT systems technically managed by the Provider, a data processing agreement must be concluded. That is, the Customer is the controller within the meaning of Art. 4 No. 7 GDPR concerning the collection, processing, and use of this data. It is incumbent upon the Customer to obtain any necessary consents from users and to provide any necessary notices pursuant to § 13 TMG.
5. In the context of free use according to § 6 ("Test Account"), the Customer is prohibited from collecting, processing, and storing personal data with Mobile2b.
6. The processing of special categories of personal data according to Art. 9 GDPR with Mobile2b is excluded.

8. Support

1. The Provider is not obliged to provide product support ("Support") for the use of the functionalities. If the Provider nevertheless provides support, this is done on a voluntary basis. A support case is free of charge for the Customer if the software does not fulfill the contractual functions according to the product description. In all other cases, a support case is chargeable for the Customer according to the current service conditions.
2. The conclusion of a separate support contract or a Service Level Agreement (SLA), especially to agree on guaranteed response times, is possible at any time.
3. If the Customer reports a support case, they must provide a detailed description of the respective malfunction to enable efficient error correction. The report is made via email or through a ticket system provided by the Provider.

9. Remuneration

1. The booking of a license package is made for a specific term. Unless the Customer terminates in writing with a notice period of one month before the end of the term, the contract automatically extends under the valid license conditions for the same term.
2. License costs are due in full at the beginning of a term.
3. If no individual license package has been concluded with the Provider, the prices according to the current price list apply.
4. If the Customer delays payment of a due remuneration by more than four weeks, the Provider is entitled, after prior reminder with a deadline and expiration of the deadline, to block access to the software. The Provider's claim to remuneration remains unaffected by the blockage. Access to the software will be unblocked immediately after settlement of the arrears. The right to block access exists as a milder measure even if the Provider has a right to extraordinary termination.
5. The remuneration for other services such as consulting, training, programming, configuration, customizing, etc., is €165.00/hour excl. VAT, billed in 15-minute increments.
6. The following are generally included free of charge for the Customer in the license usage:
   • Maintenance
   • Updates
   • Bug/Error Fixing

Technical support is not included in the license scope. Service Level Agreements (SLA) and support packages can therefore be concluded additionally.

If this is not the case, the tariff for technical support applies. An hourly rate of €116 excl. VAT is used as the basis for support services. One hour is divided into four service units of 15 minutes each; one service unit is the smallest billing interval (€29 excl. VAT). Started service units are billed in full.

In addition, the Provider offers various technical services through its service catalog.

10. Customer Rights in Case of Defects and Warranty

1. The legal regulations on warranty generally apply. §§ 536b (Knowledge of the Tenant of the Defect at Contract Conclusion or Acceptance), 536c (Defects Occurring During the Rental Period; Tenant's Obligation to Notify Defects) BGB apply. The application of § 536a para. 2 (Tenant's Right to Self-Remedy) is excluded. Also excluded is the application of § 536a para. 1 BGB (Landlord's Liability for Damages), insofar as the norm provides for liability regardless of fault.
2. The Provider is obliged to remedy defects in the software provided within the scope of a license package according to "9 Remuneration".
3. Termination by the Customer pursuant to § 543 para. 2 sentence 1 no. 1 BGB due to non-granting of contractual use is only permissible if the Provider has been given sufficient opportunity to remedy the defect and this has failed. The required time frame for the necessary bug/defect fixing will be agreed upon by the parties in individual cases.

11. Liability and Compensation

1. It is the Customer's responsibility to check whether the use of Mobile2b may pose risks to their own legal interests and those of third parties. The Provider is solely responsible for making the platform available. The Customer is solely responsible for all damages that occur in the context of using Mobile2b and may also be liable to third parties. This applies particularly to loss of earnings damages.
2. The Provider is liable under the statutory provisions for damages:
   1. Arising from injury to life, body, or health that are based on an intentional or negligent breach of duty or other intentional or negligent behavior by the Provider or its legal representatives or vicarious agents;
   2. Based on an intentional or grossly negligent breach of duty or other intentional or grossly negligent behavior by the Provider or its legal representatives or vicarious agents.
3. The Provider is liable, limited to compensation for the typical, foreseeable damage, for such damages that are based on a slightly negligent breach of essential obligations by the Provider or one of its legal representatives or vicarious agents. Essential obligations are duties whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the Customer may rely. Liability is limited to six times the monthly license fees per damage event.
4. The no-fault liability of the Provider according to § 536a para. 1, 1st alternative BGB for defects already existing at the time of contract conclusion is excluded. Any defects at contract conclusion will be remedied by the Provider within the framework of bug/error fixing within the reaction and solution times agreed upon in individual cases.
5. The Provider is only liable for simply negligently caused data loss for the damage that would have occurred even with proper and regular data backup appropriate to the importance of the data by the Customer; this limitation does not apply if the data backup was hindered or impossible for reasons attributable to the Provider.
6. The above provisions apply accordingly to the Provider's liability with regard to the reimbursement of futile expenses.
7. If the Customer's damages result from data loss, the Provider is not liable insofar as the damages would have been avoided by regular and complete backups of all relevant data by the Customer. The Customer will carry out regular and complete data backups themselves or have them carried out by a third party and is solely responsible for this.

12. Customer Data and Indemnification from Third-Party Claims

1. As a technical service provider, the Provider stores content and data for the Customer that the Customer inputs and stores when using the software and makes available for retrieval. The Customer undertakes towards the Provider not to post any criminal or otherwise absolutely or relatively unlawful content and data and not to use programs containing viruses or other malware in connection with the software. With regard to personal data, the Customer remains the responsible party and must always check whether the processing of such data through the use of the software is supported by corresponding legal permissions.
2. The Customer is solely responsible for all content they use and data they process, as well as any necessary legal positions required for this. The Provider does not become aware of the Customer's content and generally does not check the content used by the Customer with the software.
3. In this context, the Customer undertakes to indemnify the Provider from any liability and all costs, including possible and actual costs of legal proceedings, if the Provider is claimed by third parties, including employees of the Customer personally, as a result of alleged actions or omissions by the Customer. The Provider will inform the Customer about the claim and, as far as legally possible, give them the opportunity to defend against the asserted claim. At the same time, the Customer will immediately provide the Provider with all available information about the facts that are the subject of the claim.
4. Further claims for damages by the Provider remain unaffected.

13. Termination of the Contract

1. The Customer can terminate the ongoing contract in writing with a notice period of one month before the end of the contract period. If this does not occur, the contract is extended at the applicable prices by another license period (usually 12 months).
2. The right of each party to extraordinary termination for good cause remains unaffected. An important reason for the Provider exists in particular if the Customer is in arrears with the payment of a due remuneration despite a reminder for more than two months. If the Customer is responsible for the reason for termination, the Customer is obliged to pay the Provider the agreed remuneration less any expenses saved by the Provider until the date on which the contract would have ended at the earliest in the case of ordinary termination.
3. Upon termination of the contractual relationship, the workflows, business objects, and data on the Mobile2b backend will be irretrievably deleted. It is incumbent upon each contracting party to regularly undertake data backups.
4. Termination declarations must be in text form to be effective. Compliance with this form is a prerequisite for the effectiveness of the termination.

14. Confidentiality

The parties are obliged to keep all information about the respective other party that becomes known to them in connection with this contract, which is marked as confidential or is recognizable as business and trade secrets based on other circumstances, permanently secret, not to pass it on to third parties, record it, or otherwise exploit it unless the respective other party has expressly and in writing agreed to the disclosure or use, or the information must be disclosed due to law, court decision, or administrative decision.

15. Transfer of Rights and Obligations

The assignment of rights and obligations from this contract is only permissible with the prior written consent of the Provider. The Provider is entitled to entrust third parties with the fulfillment of the obligations from this contract.

16. Miscellaneous

1. This agreement and its amendments as well as all contract-relevant declarations, notification, and documentation obligations require the written form unless another form is agreed upon or legally prescribed.
2. The contract is subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of jurisdiction is the Provider's headquarters, provided the Customer is a merchant, a legal entity under public law, or a special fund under public law.
3. Should individual provisions of this agreement be invalid, the validity of the remaining provisions shall not be affected. In this case, the parties will cooperate to replace invalid provisions with provisions that correspond as closely as possible to the invalid provisions.