Legal Notice
General Terms and Conditions for the White Label Solution "Platoyo"
### General Terms and Conditions for the White Label Solution "Platoyo"
#### 1. Contracting Parties, Applicability of these GTC
(a) The following are the General Terms and Conditions for the use of the White Label solutions offered by Atalanda GmbH, Münchener Str. 1, 83395 Freilassing (hereinafter: Platoyo), represented by the managing director Roman Heimbold, as Software as a Service (hereinafter: Platoyo White Label).
(b) By concluding the contract for the use of Platoyo White Label, the customer confirms their agreement with the following terms and conditions. With the information provided here, Platoyo also fulfills its information obligations for contracts in electronic commerce.
(c) Specific services are provided based on a separate written or text form order from the customer. The agreements made in the order or in an individual contract take precedence over the provisions of these GTC.
#### 2. Scope of Services / Subject of the Contract
(a) The subject of this contract is the provision of the Platoyo software and individual components for a fee as a White Label solution ("Platoyo White Label").
(b) To use the functionalities of the Platoyo software, access software in the form of the current version of common web browsers is required. Platoyo does not provide this access software. The customer must obtain it independently at their own risk.
(c) Services and performances provided by Platoyo outside the contractual agreement or during the contract period in addition to the feature list at the time of contract conclusion may be discontinued at any time. This does not entitle the customer to a reduction or claim for damages or a right of termination.
#### 3. Provision of the Software
(a) Platoyo will provide the software in its current version on a central server or in a cloud solution for use from the agreed date under the following terms.
(b) Platoyo will provide the customer with usernames and user passwords for access with admin rights to the software if agreed upon. The customer must immediately change these passwords to passwords known only to them. Additional security measures may be agreed upon separately.
(c) Platoyo ensures that Platoyo White Label complies with the tested state of the art. If the provision of an update or a new version or a change entails a significant alteration of contractually guaranteed functionalities and/or limitations in the usability of previously generated data, Platoyo will notify the customer at least six weeks before such a change becomes effective in text form. If the customer does not object to the change in writing within two weeks of receiving the change notification, the change becomes part of the contract. Platoyo will inform the customer of the deadline and the legal consequences of its expiry in each change notification.
(d) Platoyo will provide storage space on the server or in the cloud hosting solution from the agreed provision date for the data generated by the customer using Platoyo White Label and/or the data required to use the platform (hereinafter "data").
(e) Platoyo White Label and the data are regularly backed up on the server, at least daily. The data generated and created by the customer will be stored by Platoyo for a maximum of 3 years. After this period, the data will be completely deleted even if the contract continues. The customer is responsible for complying with commercial and tax retention periods. The customer must independently secure the data in time.
(f) The transfer point for Platoyo and the data is the router exit of the cloud hosting solution used by Platoyo.
#### 4. Access Software
Platoyo does not provide the customer with access software. The following internet browsers in their current version are suitable as access software: Firefox, Safari, Google Chrome, and Edge. The customer is responsible for installing and obtaining the access software.
#### 5. Technical Availability of Platoyo White Label, Response and Restoration Times, Access to Data
(a) Platoyo is responsible for the agreed availability of Platoyo White Label and the data at the transfer point. Availability means the technical usability of Platoyo White Label and the data at the transfer point for use by the customer with the access software.
(b) Platoyo will correct reported defects or failures/partial failures of Platoyo White Label within a reasonable period. The parties will classify any defects by mutual agreement as operationally preventing, operationally hindering, or other defects. If the customer and Platoyo do not reach an agreement, Platoyo will decide on the classification reasonably considering the customer's interests. Depending on the classification of a defect, the following response and restoration times apply from Monday to Friday (08:00 to 18:00):
- Operationally Preventing Defect: Response: 2 hours / Restoration: 6 hours
- An operationally preventing defect exists if the use of Platoyo White Label is impossible or severely restricted and cannot be circumvented with reasonable organizational means. Examples include malfunctions, incorrect work results, or long response times.
- Operationally Hindering Defect: Response: 2 hours / Restoration: 1 working day
- An operationally hindering defect exists if the use of Platoyo White Label is not impossible or severely restricted due to malfunctions, incorrect work results, or response times, but the restriction is not insignificant and cannot be circumvented with reasonable organizational or economic means.
- Other Defect: Response: 1 working day / Restoration: 3 working days
- Another defect exists if the use of Platoyo White Label is not immediately and/or significantly impaired.
(c) A defect in Platoyo White Label exists if (1) Platoyo does not provide the functionalities specified in the product/service description of the program under contractual use, or (2) it is not suitable for the use specified in the contract, or (3) it is not suitable for ordinary use and does not have the quality expected for software of the same type.
A defect does not exist, in particular, if
- the presence of one of the aforementioned conditions (a)-(c) only insignificantly affects the use of the application, or
- the disturbance was caused by improper handling of Platoyo White Label.
(d) The manner of defect rectification is at Platoyo's reasonable discretion. If Platoyo offers the customer patches, bug fixes, a new version, or software components, the customer must accept them if and when it is reasonable. Defect rectification can also be provided through instructions to the customer. The customer must follow such instructions unless it is unreasonable. Platoyo's obligation to rectify defects is fulfilled when there is no longer a defect within the meaning of section (c).
(e) To check and correct errors, the customer authorizes access to data with the contract conclusion. Platoyo will only access data as necessary to check and correct errors.
#### 6. Non-Performance of Main Obligations
(a) If Platoyo does not fulfill the obligations agreed upon in sections 2, 3, and 5, the following regulations apply.
(b) If Platoyo is delayed in providing Platoyo White Label, liability is determined according to section 17. The customer is entitled to withdraw from the contract if Platoyo does not meet a four-week grace period set by the customer, i.e., does not provide the full agreed functionality of Platoyo White Label within the grace period.
(c) If Platoyo does not fulfill the agreed obligations in whole or in part after providing Platoyo White Label, the agreed monthly usage fee is reduced proportionally for the time during which Platoyo White Label and/or the data were not available to the customer to the agreed extent. If Platoyo is responsible for this non-fulfillment, the customer can also claim damages according to section 17.
(d) If the use of Platoyo White Label is not restored within the agreed period after Platoyo becomes aware of the defect, the customer can terminate the contract without notice, regardless of the reason for non-fulfillment, unless force majeure is solely present.
(e) Platoyo must demonstrate that it is not responsible for the reason for the delayed provision or performance failure. If the customer has not informed Platoyo of the performance failure, they must prove that Platoyo became aware of it otherwise in case of a dispute.
#### 7. Other Services by Platoyo
(a) If the customer is the legal operator of the White Label platform, Platoyo will provide the customer with a complete copy of all data (data stored in the database and media such as images) for download in SQL format at the end of the contract term. The one-time provision is included in the fee.
(b) Further services by Platoyo can be agreed upon at any time in writing, particularly individual adaptations or training on Platoyo White Label. Such additional services will be provided for reimbursement of the proven effort at the generally applicable prices of Platoyo at the time of commissioning or agreed upon in a separate contract with additional GTC.
(c) Platoyo is entitled to release customer-booked and Platoyo-managed or hosted domains after the contract ends if the customer does not express a need for the domain and does not initiate the transfer (KK) immediately upon contract termination.
#### 8. Support Services
(a) Platoyo's support services include error correction according to section 5 of these conditions and other services according to section 7 of these conditions. Error correction is provided at no additional cost. Other services are billed separately according to section 7.
(b) Platoyo is entitled to refer the customer in whole or in part to a ticket system such as JIRA or Trello.
#### 9. Usage Rights for Platoyo White Label
(a) The customer receives a simple (non-sublicensable and non-transferable) usage right limited to the term of this contract according to the following provisions. The customer uses Platoyo through the access software on the server or in a cloud hosting solution.
(b) The application is not transferred to the customer.
(c) The customer may only use the application for their own business activities through their own personnel. The customer is not entitled to make changes to Platoyo White Label on their own.
(d) If Platoyo provides new
versions, updates, upgrades, or other new deliveries concerning the agreed Platoyo White Label components or functions during the contract term, the above rights also apply to these.
(e) Rights not explicitly granted to the customer above are not granted to the customer. The customer is particularly not entitled to use Platoyo White Label beyond the agreed usage or allow it to be used. In particular, it is not permitted to copy, sell, or temporarily transfer Platoyo White Label, especially not to rent or lend it.
#### 10. Customer's Obligations for Secure Use
(a) The customer must take the necessary precautions to prevent unauthorized use of Platoyo White Label.
(b) The customer is responsible for ensuring that Platoyo White Label is not used for racist, discriminatory, youth-endangering, politically extreme, or other illegal purposes or purposes that violate official regulations or requirements, and that such data is not created and/or stored on the server or cloud hosting solution.
#### 11. Violation of Provisions According to Sections 9 and 10 by the Customer
(a) If the customer violates the provisions in sections 9 or 10 for reasons attributable to them, Platoyo may block the customer's access to Platoyo White Label or the data after a single prior warning to the customer in text form if the violation can be demonstrably remedied by doing so.
(b) If the customer unlawfully violates section 10, paragraph (b), Platoyo is entitled to delete the affected data. In the event of an unlawful violation by users, the customer must provide Platoyo with all information necessary to assert claims against the user upon request, particularly their name and address. If the customer continues to or repeatedly violates the provisions in sections 9 or 10 despite a corresponding written warning from Platoyo and is responsible for this, Platoyo can terminate the contract without notice.
(c) For each case in which the customer culpably enables third parties to use Platoyo White Label, the customer must pay an immediately due contractual penalty amounting to six times the individually agreed monthly basic fee. The assertion of damages remains reserved; in this case, the contractual penalty will be credited against the damages claim.
(d) If the customer is responsible for the breach of duty, Platoyo can claim damages.
#### 12. Customer's Rights to Arising Databases
12.1 If the customer is the legal operator of the White Label platform and one or more databases arise during the term of this contract, particularly through the compilation of data through activities permitted by this contract on the server of Platoyo or in the cloud hosting solution, all rights to these databases belong to the customer. The customer remains the owner of the databases even after the contract ends. After enabling data backup and prior notification in text form, in which the customer is requested to download the data backup within three weeks, Platoyo is entitled to delete the databases.
12.2 If Platoyo is the legal operator of the White Label platform and one or more databases arise during the term of this contract, particularly through the compilation of data through activities permitted by this contract on the server of Platoyo or in the cloud hosting solution, all rights to these databases belong to Platoyo. Platoyo remains the owner of the databases even after the contract ends.
#### 13. Compensation and Expense Reimbursement
(a) The compensation for the services to be provided for the granting of usage rights for Platoyo results from an individual agreement.
(b) All fees are in EURO and subject to statutory VAT.
(c) Platoyo is entitled to reimbursement of the following expenses:
- Expenses that Platoyo considered necessary for the procurement of content elements (e.g., license fees for images, videos, texts) and were communicated to the customer in advance;
- Expenses incurred by Platoyo for obtaining the internet domain;
- Expenses incurred by Platoyo for obtaining web server storage space and server capacities and/or cloud hosting capacities (if contractually agreed).
(d) Billing is done monthly at the beginning of the month. The amount is due for payment within 10 working days of receipt of the invoice.
(e) If the customer is in default with the payment of due claims, they must pay default interest of five percent above the base rate unless they prove that no damage occurred or the actual damage is lower. Platoyo's right to assert further claims from the default remains unaffected.
(f) The customer can only offset Platoyo's payment claim with payment claims that have been legally established, are undisputed, or have been recognized by Platoyo. The customer can only assert a right of retention based on counterclaims arising from the same contractual relationship.
#### 14. Customer's Obligations
The customer will fulfill all obligations necessary for the execution of the contract. In particular, they will:
(a) keep the usage and access authorizations assigned to them or the users as well as agreed identification and authentication measures secret, protect them from third-party access, and not pass them on to unauthorized users. These data must be protected by appropriate and customary measures. The customer will notify Platoyo immediately if there is suspicion that the access data and/or passwords may have become known to unauthorized persons;
(b) create the agreed access prerequisites;
(c) comply with the restrictions/obligations regarding usage rights according to section 9, particularly
1. not retrieve or allow unauthorized retrieval of information or data, interfere with or allow interference with programs operated by Platoyo, or unauthorized access to Platoyo's data networks or facilitate such access;
2. not misuse the exchange of electronic messages possible under the contractual relationship and/or using Platoyo for the unsolicited sending of messages and information to third parties for advertising purposes;
3. indemnify Platoyo against third-party claims based on the unlawful use of Platoyo by the customer or resulting from data protection, copyright, or other legal disputes caused by the customer and related to the use of Platoyo;
4. oblige the authorized users to comply with the applicable provisions of this contract;
5. design their internet pages and the use of the system in such a way as to avoid excessive server load caused by scripts or programs that require high computing power or consume above-average amounts of memory;
(d) ensure that they observe all third-party rights to material used by them (e.g., when transmitting texts/data from third parties to Platoyo's server or the cloud hosting solution used);
(e) obtain the necessary consent from the respective data subject according to section 15 paragraph (b) if they collect, process, or use personal data while using Platoyo;
(f) check data and information for viruses before sending them to Platoyo and use state-of-the-art virus protection programs;
(g) report defects in contractual services, particularly defects in the services according to sections 2 to 5, to Platoyo immediately. If the customer fails to report in time for reasons they are responsible for, this constitutes contributory negligence. As far as Platoyo could not remedy the situation due to the omission or delay of the report, the customer is not entitled to reduce the individually agreed monthly usage fee of the contract in whole or in part, to claim compensation for damage caused by the defect, or to terminate the contract without notice due to the defect. The customer must demonstrate that they are not responsible for the omission of the report;
(h) pay the agreed fee on time;
(i) if they transmit data to the system using Platoyo White Label, regularly back up these data according to their importance and create their backup copies to enable the reconstruction of the same in case of data loss;
(j) if and to the extent that they are given the technical opportunity by mutual agreement, regularly back up the data stored on the server by downloading; this does not affect Platoyo's obligation to back up the data.
#### 15. Data Security, Data Protection
(a) The parties will observe the applicable data protection regulations, particularly those valid in Germany, and oblige their employees involved in the contract and its execution according to the GDPR, as far as they are not already generally obliged.
(b) If the customer collects, processes, or uses personal data, they ensure that they are entitled to do so under the applicable data protection regulations and indemnify Platoyo against third-party claims in case of a violation. If the data to be processed are personal data, data processing on behalf of a controller takes place, and Platoyo will comply with the legal requirements of data processing on behalf of a controller and the customer's instructions (e.g., to comply with deletion and blocking obligations). Instructions must be communicated to Platoyo in writing in time.
(c) Platoyo will only collect and use customer-related data to the extent required for the execution of this contract and to remedy defects. The customer agrees to the collection and use of such data to this extent.
(d) The obligations according to paragraphs (a) to (c) remain in force as long as data are within Platoyo's sphere of influence, even beyond the end of the contract.
#### 16. Confidentiality / Secrecy / Utilization Rights / References
(a) The contracting parties agree that the data and information exchanged within the framework of the contractual relationship, which are not publicly accessible elsewhere, particularly statistics, are business and trade secrets, the disclosure of which to third parties is not permitted and may give rise to claims for damages. This also applies beyond the contract term.
(b) The customer will strictly confidentially treat all business transactions coming to their knowledge, particularly, but not limited to, printed materials, layouts, storyboards, numerical material, drawings, tapes, images, videos, DVDs, CDs, interactive products, and other materials containing films and/or radio plays and/or other copyright-protected materials from Platoyo or related companies. The customer commits to impose the obligation of confidentiality on all employees and/or third parties (e.g., suppliers, graphic designers, repro companies, printing companies, film producers, recording studios, etc.) who have access to the aforementioned business transactions. The obligation of confidentiality is unlimited in time and continues beyond the duration of this contract.
(c) The creative goods provided by Platoyo, particularly texts, graphics, films, software, websites, and other multimedia works
and programming, are protected by intellectual property law, particularly copyright law. The rights holder is Platoyo. Whether and to what extent usage rights are transferred to the customer depends on the respective individual contract. In case of doubt, all exploitation rights remain with Platoyo.
(d) Concepts underlying Platoyo's offers are generally intellectual property (intellectual property rights). In particular, the advertising texts sent to customers for illustration purposes are protected by §§ 2 para. 1 no. 1 in conjunction with 11, 12 ff., 15 ff. UrhG. The rights holder is Platoyo. The transmission of a concept to the customer is only for the purpose of contract initiation. The granting of usage rights to the customer or third parties does not occur explicitly. Any unauthorized use of a concept by Platoyo by the customer or third parties constitutes a legal violation, particularly giving rise to claims for injunction and damages.
(e) Platoyo is entitled, but not obliged, to publicly refer to the cooperation with the customer.
#### 17. Liability
(a) Platoyo is liable for itself or a vicarious agent – regardless of the legal basis – only for intent and gross negligence. In particular, claims for damages due to defect and consequential damages, from positive breach of contract, fault at contract conclusion, and tort, which are based on negligence, are excluded. Claims for damages against Platoyo based on slight negligence only exist if Platoyo or its employees or vicarious agents have violated a cardinal obligation. A cardinal obligation in this sense is any essential contractual obligation whose compliance the customer could rely on and whose fulfillment enables the proper execution of the contract. In the event of their existence, such claims for damages are limited in amount to the typically foreseeable damages at the time of contract conclusion.
(b) Claims for damages due to impossibility and delay are limited to the amount of the contract value.
(c) The aforementioned limitations of liability do not apply to damages resulting from injury to life, body, or health. Nor do the liability limitations apply in the case of express guarantees and claims due to the absence of guaranteed characteristics. Liability according to the Product Liability Act remains unaffected by the above limitation of liability.
(d) Platoyo does not assume any liability regarding the legal compliance of Platoyo. The customer must have the legal security checked by corresponding experts.
#### 18. Force Majeure
Neither party is obliged to fulfill contractual obligations in the event and for the duration of force majeure. In particular, the following circumstances are considered force majeure in this sense:
- Fire/explosion/flooding not attributable to the contractual party,
- War, mutiny, blockade, embargo,
- Labour disputes lasting more than 6 weeks and not culpably caused by the party,
- Technical problems of the internet not influenced by a party.
Each contractual party must inform the other of the occurrence of a case of force majeure immediately in writing.
#### 19. Final Provisions
(a) If individual clauses of the above General Terms and Conditions are wholly or partially invalid, the validity of the remaining clauses remains unaffected. The invalid provision is considered replaced by a provision that comes closest to the economic and legal meaning and purpose of the invalid provision in a legally effective manner.
(b) Platoyo reserves the right to change these General Terms and Conditions at any time. Price changes are excluded from this general reservation of change. The customer will be informed. Changes are considered acknowledged and accepted by the customer if they do not object to the changes within 30 days of becoming aware. Platoyo will specifically point out the validity of new General Terms and Conditions.
(c) Deviating conditions of the customer cannot be applied unless Platoyo has agreed to their validity in writing or text form before the contract conclusion.
(d) There are no oral side agreements. This also applies to the cancellation or amendment of this text form clause. A right of retention can only be asserted for claims arising from the respective contract. Offsetting is only possible with claims already recognized by the other party or legally established.
(e) The present contract is subject exclusively to German law. The application of the UN Sales Law is excluded. The place of fulfillment and jurisdiction for all obligations or disputes arising from this contract is Traunstein.
Freilassing, May 2021
General Terms and Conditions for Customizing White Label Solutions & Custom Developments
### General Terms and Conditions for Customizing White Label Solutions & Custom Developments
#### 1. Contracting Parties, Applicability of these GTC
(a) The following General Terms and Conditions apply to the use of services offered by Atalanda GmbH, Münchener Str. 1, 83395 Freilassing (hereinafter: Platoyo), represented by the managing director Roman Heimbold, for the individual customization of White Label solutions provided by Platoyo (hereinafter: Custom Development).
(b) By concluding a contract for custom programming, the customer confirms their agreement with the following terms and conditions. With the information provided here, Platoyo also fulfills its information obligations for contracts in electronic commerce.
(c) Specific services are provided based on a separate written or text form order from the customer. The agreements made in the order or in an individual contract take precedence over the provisions of these GTC.
#### 2. Scope of Services / Subject of the Contract
(a) The scope of services for Platoyo's custom developments includes the design and implementation of services in the field of individual customization of Platoyo White Label solutions as well as any other type of software programming.
(b) The subject of the contract is the provision of the chosen services by the customer for a fee to develop and/or maintain a custom requirement that complements the White Label solution.
(c) Platoyo is always entitled to use functions developed on behalf of the customer in its own software unless explicitly agreed otherwise.
(d) The creation, posting, and maintenance of content (e.g., merchant data, product data, blog entries, etc.) are not part of the scope unless contractually agreed otherwise.
(e) The customer has no right to view or receive the source code of the customizations.
#### 3. Formation of Contracts
(a) A contract between Platoyo and the customer regarding one or more of the services described in section 2 is concluded when the customer accepts Platoyo's offer.
(b) A binding offer from Platoyo is contained in the respective proposal that Platoyo provides to the customer upon request. The customer accepts by declaring their acceptance, which can be done orally, in text form, in writing, or electronically. The customer's acceptance can also be made by transferring the amount shown in the offer to Platoyo. For ease of legal transactions and documentation purposes, the customer is advised to declare their acceptance in text form, such as by email to Platoyo. Additions and modifications to the offer by the customer become part of the contract only if Platoyo confirms them in text form or writing.
#### 4. Agile Approach
(a) Platoyo works according to agile project management methods, i.e., the customer defines Story Cards together with Platoyo, each containing a new function or requirement. These Story Cards are collected in the product backlog.
(b) Platoyo and the customer jointly decide at short intervals which Story Cards will be worked on by Platoyo. If no other period is specified at the beginning of the contract, a development cycle is 14 days.
(c) At the end of a development cycle, the customer approves the worked-on Story Cards or – if not yet completed or changes are necessary – these Story Cards are carried over to the next development cycle. It is expressly clarified that this approach does not change the contractual relationship from a service contract to a contract for work.
(d) The customer sets the priorities, i.e., the customer is responsible for adjusting the priorities to their available budgets.
#### 5. Compensation and Expense Reimbursement
(a) The compensation for customizations is based on the time spent.
(b) All fees are in EURO and subject to statutory VAT.
(c) Platoyo is entitled to reimbursement of the following expenses:
- Expenses that Platoyo deemed necessary for the procurement of content elements (e.g., license fees for images, videos, texts) and communicated to the customer in advance;
- Expenses incurred by Platoyo for obtaining the internet domain;
- Expenses incurred by Platoyo for obtaining web server storage space and server capacities and/or cloud hosting capacities.
(d) Billing is done monthly at the end of the month. The amount is due for payment within 10 working days of receipt of the invoice.
(e) If the customer is in default with the payment of due claims, they must pay default interest of five percent above the base rate unless they prove that no damage occurred or the actual damage is lower. Platoyo's right to assert further claims from the default remains unaffected.
(f) The customer can only offset Platoyo's payment claim with payment claims that have been legally established, are undisputed, or have been recognized by Platoyo. The customer can only assert a right of retention based on counterclaims arising from the same contractual relationship.
#### 6. Customer's Duty to Cooperate
(a) The customer must provide Platoyo with all necessary information for the development of the concept and Story Cards in a timely manner and express their wishes promptly.
(b) At the latest at the start of a development cycle, the customer must provide all required content (texts, images, graphics including logos and buttons, videos, etc.) digitally.
(c) The documentation of Story Cards, defects, or wishes must be clear and comprehensive. Platoyo may provide the customer with a tool for targeted documentation (e.g., Jira or Trello).
#### 7. Performance Time and Termination
(a) Failure to meet a contractually agreed deadline for submitting the required number of concepts or completing custom programming is harmless for Platoyo if and to the extent that the delay is due to a breach of duties or obligations by the customer.
(b) The contract can be terminated prematurely by either party in the event of significant breaches of duty by the other party after a warning and setting a deadline, particularly if the customer persistently fails to fulfill their duties according to section 6 of these GTC or does not make due payments.
(c) The customer can also terminate a contract for custom development at any time without a valid reason. This does not affect Platoyo's claim for compensation, minus saved expenses and revenues from other uses of the previous work result or the capacities intended for the customer – at least 50% of the agreed compensation. Any ordinary termination must be received by the contractual partner four weeks before the end of the contract.
#### 8. Extraordinary Right of Termination
(a) The mutual right to extraordinary termination for good cause remains unaffected. Such a reason exists, in particular, if a party intentionally breaches obligations under this contract and thereby significantly harms the interests and rights of the other party. On Platoyo's part, there is a reason for extraordinary termination if the customer repeatedly falls into arrears with payment or fails to meet their payment obligations, as well as if a procedure for submitting a statutory declaration of insolvency is initiated, insolvency proceedings are opened over their assets, or if there is another significant deterioration in the customer's financial situation that raises concerns that they may temporarily or permanently fail to meet their obligations. This termination can be avoided by the customer if they provide security within 10 days after the corresponding request.
(b) Extraordinary termination is possible without notice. Termination can only be made in text form, such as by email or in writing by letter.
#### 9. Warranty, Obligation to Report Obvious Defects
(a) Platoyo is liable for defects in the functionality of custom programming according to the respective state of the art in accordance with the legal provisions of §§ 633 ff. BGB, unless otherwise stipulated below. Platoyo is also liable for ensuring that the custom programming meets the specifications recorded in the Story Card. However, they are not liable for complaints regarding artistic design.
(b) The customer must notify Platoyo of obvious defects in the custom programming within two weeks of delivery; otherwise, the right to assert warranty claims for these defects is excluded. A defect is obvious if it is so apparent that it would be noticeable to the average non-expert customer without special attention. To meet the deadline, timely dispatch of the defect notification is sufficient.
(c) Warranty is excluded for errors, malfunctions, or damage to the custom programming resulting from subsequent changes to the custom programming, improper operation, the use of unsuitable data carriers, interference from other programs, or other subsequent interventions of any kind not attributable to Platoyo.
(d) Assistance with eliminating errors, malfunctions, or damage to the custom programming not attributable to Platoyo will be charged to the customer at the usual hourly rate.
#### 10. Liability
(a) Platoyo is liable for itself or a vicarious agent – regardless of the legal basis – only for intent and gross negligence. In particular, claims for damages due to defect and consequential damages, from positive breach of contract, fault at contract conclusion, and tort, which are based on negligence, are excluded. Claims for damages against Platoyo based on slight negligence only exist if Platoyo or its employees or vicarious agents have violated a cardinal obligation. A cardinal obligation in this sense is any essential contractual obligation whose compliance the customer could rely on and whose fulfillment enables the proper execution of the contract. In the event of their existence, such claims for damages are limited in amount to the typically foreseeable damages at the time of contract conclusion.
(b) Claims for damages due to impossibility and delay are limited to the amount of the contract value.
(c) The aforementioned limitations of liability do not apply to damages resulting from injury to life, body, or health. Nor do the liability limitations apply in the case of express guarantees and claims due to the absence of guaranteed characteristics. Liability according to the Product Liability Act remains unaffected by the above limitation of liability.
(d) Platoyo does not assume any liability regarding the legal compliance of custom programming. The customer must have the legal security checked by corresponding experts.
#### 11. Customer's Responsibility, Indemnification
The customer is responsible for the legality and freedom from third-party rights concerning their content, products, and services, especially their websites. This applies in particular to intellectual property and competition law. If the contractual content, products, and services contain legal violations and/or are subject to third-party rights, the
customer indemnifies Platoyo from all resulting claims and bears the resulting costs, including the costs of legal defense.
#### 12. Confidentiality / Secrecy / Utilization Rights / References
(a) The contracting parties agree that the data and information exchanged within the framework of the contractual relationship, which are not publicly accessible elsewhere, particularly statistics, are business and trade secrets, the disclosure of which to third parties is not permitted and may give rise to claims for damages. This also applies beyond the contract term.
(b) The customer will strictly confidentially treat all business transactions coming to their knowledge, particularly, but not limited to, printed materials, layouts, storyboards, numerical material, drawings, tapes, images, videos, DVDs, CDs, interactive products, and other materials containing films and/or radio plays and/or other copyright-protected materials from Platoyo or related companies. The customer commits to imposing the obligation of confidentiality on all employees and/or third parties (e.g., suppliers, graphic designers, repro companies, printing companies, film producers, recording studios, etc.) who have access to the aforementioned business transactions. The obligation of confidentiality is unlimited in time and continues beyond the duration of this contract.
(c) The creative goods provided by Platoyo, particularly texts, graphics, films, software, websites, and other multimedia works and programming, are protected by intellectual property law, particularly copyright law. The rights holder is Platoyo. Whether and to what extent usage rights are transferred to the customer depends on the respective individual contract. In case of doubt, all exploitation rights remain with Platoyo.
(d) Concepts underlying Platoyo's offers are generally intellectual property (intellectual property rights). In particular, the advertising texts sent to customers for illustration purposes are protected by §§ 2 para. 1 no. 1 in conjunction with 11, 12 ff., 15 ff. UrhG. The rights holder is Platoyo. The transmission of a concept to the customer is only for the purpose of contract initiation. The granting of usage rights to the customer or third parties does not occur explicitly. Any unauthorized use of a concept by Platoyo by the customer or third parties constitutes a legal violation, particularly giving rise to claims for injunction and damages.
(e) Platoyo is entitled, but not obliged, to publicly refer to the cooperation with the customer.
#### 13. Final Provisions
(a) If individual clauses of the above General Terms and Conditions are wholly or partially invalid, the validity of the remaining clauses remains unaffected. The invalid provision is considered replaced by a provision that comes closest to the economic and legal meaning and purpose of the invalid provision in a legally effective manner.
(b) Platoyo reserves the right to change these General Terms and Conditions at any time. Price changes are excluded from this general reservation of change. The customer will be informed. Changes are considered acknowledged and accepted by the customer if they do not object to the changes within 30 days of becoming aware. Platoyo will specifically point out the validity of new General Terms and Conditions.
(c) Deviating conditions of the customer cannot be applied unless Platoyo has agreed to their validity in writing or text form before the contract conclusion.
(d) There are no oral side agreements. This also applies to the cancellation or amendment of this text form clause. A right of retention can only be asserted for claims arising from the respective contract. Offsetting is only possible with claims already recognized by the other party or legally established.
(e) The present contract is subject exclusively to German law. The application of the UN Sales Law is excluded. The place of fulfillment and jurisdiction for all obligations or disputes arising from this contract is Traunstein.
Freilassing, July 2018