General Terms of Use for the use of Fanomena Leads Cloud Services

Fanomena GmbH (FANOMENA)
Dudweilerstraße 71
66111 Saarbrücken
Tel: +49 681 8449 2557
E-Mail: info@fanomena.io
https://fanomena.io

Managing Directors Marc Grewenig, Max Ulbrich
register court Saarbrücken HRB 102270

§ 1 Inclusion and scope

These General Terms of Use for the use of Fanomena Leads Services apply to all contracts concluded by FANOMENA with our clients for the use of our product Fanomena Leads Cloud Services. This contractual relationship with the customer is governed exclusively by the content of the contract, including the general terms and conditions used by us, in particular these Fanomena leads Cloud Services Terms and Conditions. The inclusion of the client's general terms and conditions is expressly objected to!

§ 2 General subject of the Contract

Fanomena Leads Cloud Services gives the client the technical possibility and authorisation to access a software application hosted on a server by a third party provider via telecommunications and to use the functionalities of the software application within the scope of this contract. In this case, the third party hosting provider is Heroku, which uses the server infrastructure of Amazon AWS. The servers of our hosting partner are located within the European Union.

§ 3 General services

Fanomena Leads Cloud Services is a cloud based software solution. Fanomena Leads Cloud Services enables companies of all types and sizes to digitally (mobilely) share their offers, promotions and information with potential customers. A login system gives the customer access to the product (dashboard) and allows him to create and manage his campaigns. In addition to creating and managing users, content cards, leads and access to the personalized microsite, the client can arrange for a link to an individualized microsite to be sent by email to the client's potential customers and also has access to statistics that analyze and evaluate the use of the personalized microsite by the participants. Potential customers (=leads) of the client have web-based access to the personalized microsite and can read, use and redeem offers, actions and information.

§ 4 Usage right

4.1 Our Client shall have the non-exclusive right to access Fanomena Leads Cloud Services via telecommunications and to use the functionalities associated with Fanomena Leads Cloud Services in accordance with the Fanomena Leads Cloud Services Agreement via a browser for the duration of this Agreement. The Customer shall not be granted any additional rights, in particular to Fanomena Leads Cloud Services, the software application or the operating software.

4.2 The Customer is not entitled to use Fanomena Leads Cloud Services beyond the use permitted under the Fanomena Leads Cloud Services Agreement and these Fanomena Leads Cloud Services Terms of Use or to have it used by third parties beyond the use permitted under the Fanomena Leads Cloud Services Agreement and these Fanomena Leads Cloud Services Terms of Use or to make it accessible to third parties beyond the use permitted under the Fanomena Leads Cloud Services Agreement and these Fanomena Leads Cloud Services Terms of Use. In particular, the Client is not permitted to reproduce, sell or temporarily transfer Fanomena Leads Cloud Services or parts thereof, in particular not to rent or lend them out.

4.3 If the contractual use of Fanomena Leads Cloud Services is impaired through no fault of FANOMENA by the intellectual property rights of third parties, FANOMENA is entitled to refuse the services affected thereby. FANOMENA will inform the client immediately and allow him access to his data in an appropriate manner. In this case, the Customer shall not be obliged to pay. Other claims or rights of the client remain unaffected.

§ 5 Data protection and data security

5.1 Both parties shall observe the applicable provisions of data protection law, in particular those applicable in Germany (EU Data Protection Basic Regulation, BDSG New), and shall oblige their employees employed in connection with the contract to maintain data secrecy and confidentiality, unless they are already under a general obligation to do so.

5.2 If Customer collects, processes or uses personal data itself or through FANOMENA, Customer warrants that it is entitled to do so in accordance with the applicable provisions of data protection law, in particular, and shall indemnify FANOMENA against claims by third parties in the event of a breach.

5.3 It is made clear that the customer remains 'master of the data' both generally in the contractual relationship and in the sense of data protection law. The client is the sole owner with regard to the right of disposal and ownership of all customer-specific data (entered data, processed, stored data, output data). FANOMENA does not control the data and content stored for the client with regard to the legal permissibility of collection, processing and use; this responsibility is assumed exclusively by the client.

5.4 If necessary, the parties shall conclude the necessary contract for the processing of personal data on behalf of the Customer (contract processing agreement pursuant to Art. 28 DSGVO) separately and attach it to the contractual documents.

5.5 FANOMENA shall take technical and organizational precautions and measures to ensure data protection. In principle, the Client is not entitled to demand access to the premises with the software application, server and operating software as well as other system components of Fanomena Leads Clouds Services. This shall not affect the Customer's access rights after written registration to verify compliance with the technical and organizational measures and other legal and contractual handling of personal data by FANOMENA in the context of the operation of Fanomena Leads Cloud Services in accordance with this Agreement.

§ 6 Obligations and duty of the customer

6.1 The Client shall fulfil the obligations incumbent upon him for the provision and execution of the Fanomena Leads Cloud Services Agreement. In particular
6.1.1 pay the agreed prices on time;
6.1.2 protect the assigned user and access authorizations as well as identification and authentication backups against access by third parties and do not pass them on to unauthorized participants;
6.1.3 ensure that all industrial property rights and copyrights are observed (e.g. when transferring texts and data from third parties to FANOMENA's servers);
6.1.4 to obtain the necessary consent of the person concerned, insofar as he or she collects, processes or uses personal data within the framework of the use of Fanomena Leads Cloud Services and no legal basis for permission is involved;
6.1.5 Fanomena Leads Cloud Services shall not be misused or allowed to be misused, in particular shall not transmit information offers with illegal or immoral content or refer to information that serves to incite hatred, lead to criminal offences or glorify or trivialise violence, are sexually offensive or pornographic, are suitable to seriously endanger the morals of children or adolescents or impair their well-being or damage the reputation of FANOMENA;
6.1.6 refrain from attempting to access or interfere with any information or data unauthorized by FANOMENA or any unauthorized third party, or to interfere with or allow to interfere with any programs operated by FANOMENA, or to interfere with any data networks operated by FANOMENA unauthorizedly;
6.1.7 not misuse the possible exchange of electronic messages for the unsolicited sending of messages or information to third parties for advertising purposes (spamming);
6.1.8 indemnify FANOMENA against any claims by third parties based on or endorsed by FANOMENA Leads Services' unlawful use, or arising in particular from data protection, copyright or other legal disputes arising out of the use of FANOMENA Leads Cloud Services. If the client recognizes or must recognize that such a violation is imminent, he is obliged to inform FANOMENA immediately;
6.1.9 back up the data transmitted to FANOMENA on a regular basis and in accordance with the risks involved, but at least once a day, and make its own backup copies in order to ensure that the data and information are reconstructed in the event of loss;
6.1.10 Before sending data and information, check them for viruses and use state-of-the-art virus protection programs;
6.1.11 to secure his data stocks existing in the system as well as the analyses carried out by FANOMENA by downloading them until the termination of the Fanomena Leads Clouds Services contract, since after termination of the contract, access to these data stocks by the Customer is no longer possible.

6.2 Access to Fanomena Leads Clouds Services is via telecommunications. Prerequisites for the use of Fanomena Leads Cloud Services are: - Internet access - Current browser/client (display errors may occur with obsolete browser/client versions)

6.3 The provision of these prerequisites as well as the telecommunication services including the transmission services from the service transfer point to the equipment used by the customer are not subject matter of this contract, but are the responsibility of the customer.

§ 7 Use of Fanomena Leads in breach of contract

7.1 FANOMENA is entitled to block access to Fanomena Leads Cloud Services and its data in the event of an unlawful breach by the Customer of one of the essential obligations stipulated in this contract, in particular in the event of a breach of the obligations specified in § 6.1.5 - 6.1.7. Access shall only be restored when the breach of the material obligation concerned has been permanently eliminated or the risk of recurrence has been ensured to FANOMENA by the submission of an appropriate and punishable cease-and-desist declaration. In this case, the customer remains obliged to pay the agreed prices.

7.2 FANOMENA is entitled to delete the data concerned in the event of a violation of § 6.1.5 - 6.1.7.

7.3 In the event of an unlawful breach of the obligations set forth in § 6.1.5 - 6.1.7 by a participant authorized by the Customer, the Customer shall, upon request and without delay, provide FANOMENA with all information required to assert claims against the participant, in particular its name and address.

§ 8 Terms of payment

8.1 The customer shall pay the prices agreed in the order document.

8.2 Prices are due after invoicing. The invoice amount must be credited to the account specified in the invoice no later than 30 days after receipt of the invoice.

8.3 All prices are net prices and are increased by the applicable statutory value-added tax.

§ 9 Liability

9.1 FANOMENA shall be liable to the Customer without limitation in the event of intent or gross negligence for all damages caused by the Customer and its legal representatives or vicarious agents.

9.2 In the event of slight negligence, FANOMENA shall have unlimited liability in the event of injury to life, limb or health. Otherwise, FANOMENA shall only be liable if FANOMENA has violated an essential contractual obligation (cardinal obligation). In such cases, liability shall be limited to compensation for foreseeable, typically occurring damages and shall not apply to consequential damages.

9.3 The strict liability of FANOMENA for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract is excluded. § 9.1 and 9.2 remain unaffected.

9.4 Liability in accordance with the provisions of the Product Liability Act shall remain unaffected.

§ 10 Force majeure

10.1 FANOMENA is released from the obligation to perform under this contract if and to the extent that the non-fulfilment of services is due to the occurrence of circumstances of force majeure after conclusion of the contract.

10.2 Circumstances of force majeure include war, strikes, riots, expropriations, cardinal legal changes, storms, floods and other natural disasters as well as other circumstances for which FANOMENA is not responsible.

10.3 Each party shall immediately notify the other party in writing of the occurrence of any event of force majeure.

§ 11 Commencement of the contract and term; termination for a serious cause

11.1 The contract shall come into force at the beginning of the agreed contractual term and shall end upon expiry of the agreed contractual term. The agreed contract period results from the Fanomena Leads Cloud Services contract.

11.2 The right to terminate the contract for good cause remains unaffected. Termination must be made in writing.

§ 12 Final provisions

12.1 The Client may transfer the rights and obligations arising from this contract to third parties only with the prior written consent of FANOMENA.

12.2 The contractual relations shall be governed by German law. The place of jurisdiction shall be Saarbrücken.

Fanomena GmbH, Mai 2019

© Copyright Fanomena 2019