Customer Service Agreement

§ 1 | Scope |

(1) These General Terms and Conditions (hereinafter: “GTC”) apply to all contracts between Thalox AG, represented by the Executive Board, Erwin Marc Arnold, Schießhausstraße 155, 86633 Neuburg a.d. Donau, Germany (hereinafter: “Provider” or “Thalox”) and its customers (hereinafter: “Customer”), which have as their object the temporary provision of the software solution “thalox _{for  marketers”} (hereinafter: “Software” or “Application”) as Software as a Service or extensions or further services thereto, even if this is not separately agreed again. Insofar as the application merely relies on services of third parties, in particular HubSpot Inc., HubSpot, Inc. 25 First Street, Cambridge, MA 02141 USA (hereinafter “HubSpot”) or is capable of cooperating with them, the services of third parties are not the subject of performance and are not covered by this agreement.

(2) Unless expressly agreed otherwise, these GTC shall apply exclusively in the version valid at the time of conclusion of the contract.

By accepting the offer, at the latest by registering an account on https://go.thalox.com, the customer expressly agrees to these GTC and waives the assertion of his own deviating terms and conditions or terms and conditions of purchase and payment. Other terms and conditions do not apply even if Thalox does not expressly object to them in individual cases. Deviating terms and conditions of the customer shall only apply if they have been agreed separately, expressly and in writing. If the customer does not agree with this, he must immediately inform the supplier of this in writing.

(3) Customers within the meaning of these GTC are exclusively entrepreneurs, i.e. any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the exercise of their commercial or independent professional activity. Conclusion of a contract with consumers is excluded.

(4) Individual agreements made with the Customer in individual cases, in particular within the framework of the “Enterprise” variant (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation by the Provider shall be authoritative for the content of such agreements.

(5) Thalox is entitled to make changes to the service descriptions or these general terms and conditions and other conditions. Thalox will only make these changes for valid reasons, in particular due to new technical developments, changes in case law or other equivalent reasons. If the amendment significantly disturbs the contractual balance between the parties, the amendment shall not be made. Otherwise, changes require the consent of the customer

§ 2 | Subject matter of performance |

(1) The subject matter of the contract is the provision of the application as well as the technical facilitation of the use of the application by means of browser access and the granting or procurement of rights of use to the application as well as the provision of storage space for the data generated by the customer through the use of the application and/or the data required for the use of the application (hereinafter: application data) by the provider to the customer against payment of the agreed fee.

(2) The application establishes an interface to the third-party provider HubSpot and enables the evaluation of customer communication. This includes in particular

• The creation of probability calculations regarding the reaction to the customer’s marketing measures (“engagement score”).
• Evaluations of the customer segments in relation to the engagement score
• Making proposals to increase the engagement score
• Creation of graphical evaluations

The object of the application is exclusively the evaluation of customer communication. The application itself does not select any marketing measures or content to be transmitted to customers. The application does not check the correctness or completeness of the content of the customer entries or any third-party data included. The calculated engagement score, reports, visualizations and other presentations are not advisory services or recommendations for action, but non-binding reports which the client can include at his own discretion as part of his planning. The remuneration listed in § 9 is paid exclusively for the technical provision or granting of rights of use to the software and does not constitute a consultancy fee.

(3) The application is offered in four variants:

(a) thalox _{for marketers} Free (free of charge)

(b) thalox _{for marketers} StartUp (free of charge)

(c) thalox _{for marketers} Business

(d) thalox _{for marketers} Enterprise

The content and scope of services of the respective variant as well as the permissible number of users can be found on the provider’s website at https://thalox.com/pricing/.

(4) The provision of third party services is not the subject of the service. Thalox does not assume any warranty for the functionality and maintenance of third-party services, in particular HubSpot or other platforms operated by third parties.

(5) Insofar as the booking of the chargeable service is preceded by a free phase, the customer cannot assert any claims in this respect beyond the statutory liability claims. Multiple use of the test phase is excluded.

§ 3 | Registration and conclusion of contract |

(1) Use of the application requires prior registration. There is no entitlement to the opening of a customer account. Only persons with unlimited legal capacity who are acting in the exercise of their commercial or independent professional activity are entitled to register. At the Provider’s request, the Customer must send the Provider proof of identity (e.g. a copy of his identity card) or state his VAT identification number and document his registration. Within the scope of registration, the Provider shall request the Customer’s data. The data required to create the user account must be provided by the customer completely and truthfully. After providing the data, the customer receives a verification code to the e-mail address provided by the customer. After confirmation of the e-mail address, registration for the application takes place by entering the deposited e-mail address and the password assigned by the customer himself. The customer is obliged to keep his password secret and not to disclose it to third parties under any circumstances.

(2) After registration, the customer may use the software in the “Free” variant free of charge for 30 days.

(3) Prior to the expiry of the 30-day period pursuant to para. 2, the customer shall be informed of the impending end of the free-of-charge usage period and shall be offered the option of switching to a paid variant. For this purpose, the customer will be requested to provide a billing address and a means of payment. During the ordering process, the process can be cancelled at any time by clicking on the “back” symbol (“< “). Once the information has been entered in full, the customer is shown an order overview. The contract is concluded by clicking on “Sign Up”.

(4) Insofar as the customer’s personal or company details change, the customer himself is responsible for updating them. All changes must be communicated to the Provider via the input mask in the personal area or in text form.

§ 4 | Provision of the application |

(1) The Provider shall keep the application in the version current at the time of conclusion of the contract available for use in accordance with the following provisions from the time of conclusion of the contract (§ 3) on one or more central data processing systems which it rents from third parties (hereinafter: server).

(2) The Provider shall ensure that the provided application is

• is suitable for the purposes resulting from the respective current service description,
• is free of defects during the entire term of the contract,
• in particular, is free of viruses and similar malware that would render the application unsuitable for use in accordance with the contract

whereby the provider owes the care customary in the industry. In determining whether the provider is at fault, it must be taken into account that software cannot technically be created completely free of errors.

(3) The security measures to be observed by the customer result from § 8 of these GTC.

(4) Insofar as the Provider produces the application itself, it shall ensure that it always corresponds to the proven state of the art. If the Provider obtains parts of the application (e.g. plug-ins, etc.) from third parties, it shall keep the latest version of the respective part of the application that is generally available on the market at the time of conclusion of the contract ready for use by the Customer for no later than three months after the general market release by the manufacturer.

Insofar as the provision of a new version or any other change results in the functionalities of the application, work processes of the Customer supported by the application and/or restrictions in the usability of previously generated data being impaired, the Provider shall notify the Customer of this in writing at least six weeks before such a change takes effect. If the Customer does not object to the change in writing within a period of two weeks from receipt of the change notification, the change shall become part of the contract. The Provider shall draw the Customer’s attention to the aforementioned deadline and the legal consequences of its expiry in the event of failure to exercise the option to object whenever changes are announced.

(5) The Provider shall provide storage space on the server for storing the application data from the time the application is made available for operation.

(6) The application and the application data are backed up on the server regularly, at least daily. The customer is responsible for compliance with any retention periods under commercial and tax law.

(7) The transfer point for the application and the application data is the router exit of the data centre of the hosting provider commissioned by the Provider.

(8) The Customer shall keep the Mozilla Firefox or Google Chrome browsers in the current version, or at least the previous version of the current version, ready for accessing the application. For changes to the Provider’s technical system, the objection solution of para. 4 subpara. 2 shall apply accordingly. The Provider shall not be responsible for the quality of the required hardware and software on the part of the Customer or for the telecommunications connection between the Customer and the Provider up to the transfer point.

§ 5 | Availability of the application |

(1) The Provider owes the availability of the Application and the Application Data at the Delivery Point as agreed below. The contractual partners understand availability to mean the technical usability of the application and the application data at the delivery point for use by the customer.

(2) The Provider shall make the application available to the Customer from the time of registration, but this shall exclude the agreed times of announced unavailability.

(3) The available use shall also include the periods during

• disruptions in or due to the condition of parts of the technical infrastructure required for the execution of the application, including third-party services, which are not to be provided by the Provider or its vicarious agents (§ 2 para. 4);
• disruptions or other events that are not (partly) caused by the Provider or one of its vicarious agents, e.g. exceeding an agreed permitted load of the application;
• insignificant reduction of the suitability for the contractual use;

(4) Announced unavailability

(a) Thalox is entitled during periods of announced unavailability to maintain, service, backup or otherwise work on the Application and/or servers. The Customer hereby agrees that there will be a scheduled unavailability every Wednesday from 8:00 p.m. to 11:00 p.m. throughout the term of the Agreement. In all other respects, announced unavailability and their expected duration shall be announced at least 7 days in advance. This period may be shortened in justified exceptional cases.

(b) Use of the application during periods of announced unavailability

If and to the extent that the customer can use the application during periods of announced unavailability, there shall be no legal claim to this. If the use of an application during times of announced unavailability results in a reduction or cessation of performance, the customer shall have no claim to liability for defects or damages. This shall also apply insofar as the customer uses a browser other than that specified in § 4 para. 8 or a version other than that recommended therein.

(5) Troubleshooting

Unless response and recovery times have been agreed separately, in the event of unplanned unavailability of the application the Provider shall ensure that the fault rectification is initiated within a reasonable time and that the Customer is informed of this. The Provider shall also ensure that the reported or noticed technical malfunction is remedied within a period of time appropriate to the extent of the malfunction.

§ 6 | Other Services of the Provider |

(1) During the term of the contract, an electronic user manual for the application shall be available to the Customer for retrieval at https://thalox.com/knowledge-base/. If the application is updated, the user manual shall be adapted accordingly.

(2) If the Provider provides third-party software as an application and no documentation in German/English is generally available from this third party, the Provider shall be entitled to provide only the documentation accessible to it.

The customer shall be entitled to save, print and reproduce the documentation provided in reasonable numbers for the purposes of this contract, while maintaining existing property right notices. In all other respects, the restrictions on use of the documentation set out in §§ 7-8 of these GTC for the application shall apply mutatis mutandis.

(3) Thalox provides customer support via a contact form. Thalox reserves the right to adjust the availability times and channels of the customer support. If the contractual partners agree on support response and recovery times in a service level agreement (SLA), this shall become part of the contract.

(4) Further services of the Provider can be agreed at any time. In particular, support services can be agreed subsequently. Unless otherwise agreed, such further services shall be provided against reimbursement of the proven expenditure at the Provider’s general hourly rates.

§ 7 | Rights of use to and use of the application |

(1) The customer shall receive simple (non-sublicensable and non-transferable) rights of use to the application, limited to the term of the respective contract, in accordance with the following provisions.

(2) The customer uses the application exclusively on the server. The application shall not be physically transferred to the customer. The customer may only use the application for its own business activities by its own personnel.

(3) The customer shall only use the application to the extent of the booked variant. The Provider reserves the right to assert claims in the event of additional use beyond the agreed use.

(4) The customer is not entitled to make changes to the application. This does not apply to changes that are necessary for the correction of errors if the Provider is in default with the correction of the error, refuses to correct the error or is unable to correct the error due to the opening of insolvency proceedings.

(5) If the Provider makes new versions, updates, upgrades or other new deliveries with regard to the application during the term, the above rights shall also apply to these.

(6) The customer is not entitled to any rights not expressly granted to the customer above. In particular, the customer is not entitled to use the application beyond the agreed use or to have it used by third parties or to make the application accessible to third parties. Expecialy is not permitted to reproduce, sell or provide the application for a limited period of time, in particular not to rent or lend it.

§ 8 | Client’s obligations for safe use |

(1) The customer shall take the necessary precautions to prevent the use of the application by unauthorized persons; in particular, the customer shall ensure that the passwords used contain at least 8 characters and are composed of upper case letters, lower case letters and numbers.

(2) The customer is liable for ensuring that the application is not used for racist, discriminatory, pornographic purposes, purposes that endanger the protection of minors, politically extreme purposes or purposes that otherwise violate the law or official regulations or requirements, or that corresponding data, in particular application data, are created and/or stored on the server.

(3) It is the responsibility of the customer to comply with the restrictions/obligations with regard to the rights of use pursuant to § 7, in particular he shall

(a) not to retrieve or cause to be retrieved any information or data without authorization or to interfere or cause to be interfered with any programs operated by Thalox or to intrude or facilitate any such intrusion into Thalox’s data networks without authorization;

(b) not misuse the exchange of electronic messages possible within the framework of the contractual relationship and/or using the application for the unsolicited sending of messages and information to third parties for advertising purposes;

(c) indemnify Thalox against claims by third parties based on his unlawful use of the application or arising from data protection, copyright or other legal disputes caused by the customer that are connected with the use of the application;

(d) oblige the Authorized End Users to comply in turn with the provisions of this Agreement applicable to them;

(e) ensure that (e.g. when transmitting texts/data of third parties to the Provider’s server) he observes all rights of third parties to material used by him;

(f) obtain the required consent of the respective data subject in accordance with Section 10 (2), insofar as he or she collects, processes or uses personal data when using the application and no statutory element of permission applies;

(g) check data and information for viruses before sending them to Thalox and use state-of-the-art virus protection programs;

(h) if it transmits data to generate application data using the Provider’s application, back it up regularly and in accordance with the significance of the data and make its own back-up copies to enable the reconstruction of the data and information in the event of loss;

(i) if and insofar as the technical possibility to do so is made available to him by mutual agreement, regularly back up the application data stored on the server by download; the obligation of the Provider to back up data pursuant to Section 4 (6) remains unaffected.

(4) Violation of the provisions under paras. 1 to 3 by the customer

(a) If the customer violates the provisions in paragraph 1, – 3 for reasons for which he is responsible, Thalox may block the customer’s access to the application or the application data if the violation can be demonstrably remedied.

(b) If the customer unlawfully violates paragraph 2 or 3, Thalox is entitled to delete the data or application data affected thereby. In the event of an unlawful violation by the user, the customer must immediately provide Thalox, upon request, with all information necessary to assert claims against the user, in particular the user’s name and address.

If the customer continues to violate or repeatedly violates the provisions in paragraphs 1 to 3 despite a corresponding written warning from the provider, and if the customer is responsible for this, the provider may terminate the contract extraordinarily without observing a notice period.

(c) In the event of breaches of duty by the Customer, Thalox may claim damages in accordance with § 12, unless the Customer is not responsible for the breach of duty

(5) If and to the extent that a database, databases, a database work or database works are created on the Provider’s server during the term of the respective contract, in particular by compiling application data, as a result of activities of the Customer permitted under the contract, all rights thereto shall belong to the Customer. The customer shall remain the owner of the databases or database works even after the end of the contract.

(6) The Customer is not entitled to transfer the software to third parties, in particular to sell or sublet it, without the Provider’s permission. Dependent use by the customer’s employees or other third parties subject to the customer’s right to issue instructions within the scope of the intended use and compliance with the agreed number of users is permitted.

(7) The customer shall take suitable precautions to protect the application from unauthorised access by third parties. The contractually agreed number of users may not be exceeded. In particular, user accounts may not be used by several employees at the same time.

§ 9 | Charges |

(1) The Provider shall charge a monthly flat fee for the services to be rendered for the granting of use with regard to the application and the provision of storage space, including data backup

(2) Unless the Parties have reached an individual agreement on the remuneration within the framework of the “Enterprise” variant, the remuneration shall result from the overview available at https://thalox.com/pricing/.

(3) The respective lump sum shall accrue for each monthly billing period from operational provision and shall be due in advance on the first working day of the billing period. If the customer has justifiably terminated the contract extraordinarily, the flat rate shall be repaid pro rata temporis.

(4) System changes to third party services (§ 2 para. 4) after conclusion of the contract (§ 3) shall not lead to the discontinuation of the obligation to pay remuneration.

(5) Other services shall be provided by the Supplier on a time and material basis at the Supplier’s general list prices applicable at the time of the order.

(6) Any separate remuneration shall be due 10 days after receipt of the invoice.

(7) Remuneration shall be owed plus VAT at the statutory rate applicable from time to time.

(8) The Customer agrees to the issuance of invoices in an electronic format and their electronic transmission (electronic invoices). Thalox is entitled to use payment service providers for the processing of payments and the issuing of invoices.

§ 10 | Data security, data protection |

(1) The contracting parties shall observe the applicable data protection provisions, in particular those valid in Germany (in particular the Basic Data Protection Regulation and the Federal Data Protection Act) and shall oblige their employees deployed in connection with the contract and its performance to maintain data secrecy, insofar as they are not already generally obliged to do so.

(2) If the customer collects, processes or uses personal data, he guarantees that he is entitled to do so in accordance with the applicable provisions, in particular those relating to data protection law, and in the event of a breach he indemnifies Thalox against claims by third parties.

(3) The Provider shall collect and use personal data of the Customer only to the extent required for the performance of this Agreement. The customer agrees to the collection and use of such data to this extent.

(4) The obligations under paragraphs 1 to 3 shall continue to exist as long as application data are within the sphere of influence of the Provider, even beyond the end of the contract.

(5) Insofar as the transmitted data also contain personal data, the contracting parties shall conclude a commissioned data agreement in accordance with Art. 28 DSGVO. In the event of contradictions between these GTC and the agreement on commissioned data processing, the latter shall take precedence over the former.

§ 11 | Secrecy |

(1) The Supplier undertakes to treat as confidential both itself and its employees and other vicarious agents with respect to all information obtained within the scope of the respective contractual relationship and designated as confidential or to be regarded as confidential under the circumstances.

(2) The confidentiality obligation shall continue to apply after termination of the respective contract.

(3) The duty of confidentiality shall not apply to such information which is

• do not qualify as business secrets within the meaning of the GeschGehG
• were demonstrably known to or made available to the provider before the customer became aware of them;
• are demonstrably disclosed to the Provider in a lawful manner by third parties who are not subject to a duty of confidentiality after being informed by the Customer;
• were in the public domain as a result of publications or for any other reason, or became so after they were brought to the public’s attention.

(4) Notwithstanding the aforementioned provisions, the Provider shall be entitled to fulfil its statutory obligations to provide information also with regard to the information provided to it.

(5) Provided that the customer gives prior consent in text form, Thalox is entitled to name the customer as a reference customer vis-à-vis third parties and to include the customer’s name and logo on its own Internet pages for the purpose of providing references. The authorisation exists beyond the termination of the contractual relationship until revoked by the customer.

§ 12 | Liability |

(1) In the event of intent or gross negligence, the Provider shall be liable without limitation for all damage caused by it and its legal representatives or vicarious agents.

(2) In the event of slight negligence, the Provider shall be liable without limitation in the event of injury to life, limb or health.

(3) In all other respects, the Provider shall only be liable if it has breached a material contractual obligation. Material contractual obligations are those obligations which are of particular importance for the achievement of the purpose of the contract, as well as all those obligations which, in the event of a culpable breach, may lead to the achievement of the purpose of the contract being jeopardized. In these cases, liability is limited to compensation for the foreseeable, typically occurring damage. In this respect, it is again stated that according to § 2 para. 2 – 4 neither the provision and maintenance of third party services, nor the verification of input by the customer or other third parties are contractual obligations.  The provider’s strict liability for damages for defects existing at the time of conclusion of the contract is excluded; paras. 1 and 2 remain unaffected.

(4) Insofar as data backup is not included in the Provider’s contractual catalogue of services, the Customer shall be responsible for regularly backing up its data. In the event of a loss of data for which the Provider is responsible, the Provider shall therefore be liable exclusively for the costs of restoring the service on the basis of and with the status of the Customer’s backup copy.

(5) Thalox is not liable for an infringement of the rights of third parties by the customer, if and to the extent that this infringement results from a transgression of the rights of use granted under these GTC. In this case, the Customer shall indemnify Thalox upon first request against all claims of third parties.

(6) Liability under the Product Liability Act and other mandatory statutory provisions shall remain unaffected.

§ 13 | Term, Termination |

(1) The respective contractual relationship begins with the conclusion of the contract (§ 3). Unless otherwise agreed, paid variants of the application have a term of one month, beginning with the respective booking.

(2) The contractual relationship shall be automatically extended by a further month unless terminated by one of the parties at the end of the respective term.

(3) The right to terminate for good cause remains unaffected. Good cause shall be deemed to exist in particular if the respective other contracting party grossly breaches its contractual obligations in breach of contract and despite written warning and/or setting of a deadline. Good cause shall be deemed to exist in particular if the customer is in default with the payment of fees or significant parts thereof and does not pay the fees within a reasonable period of time even after a reminder or if an application for the opening of insolvency proceedings against the customer’s assets has been filed and/or such insolvency proceedings have been opened.

(4) If the contractual relationship is terminated extraordinarily by the Provider due to a culpable breach of duty by the Customer, the Customer undertakes to compensate the Provider for the damage resulting from the extraordinary termination.

(5) If notice of termination is not given via the button provided for this purpose in the customer profile, it must be given in text form.

(6) After termination, access to the customer account will be blocked. Unless otherwise agreed, all customer data will be deleted one month after termination of the contract. It is the responsibility of the customer to save his customer data to his local system in a timely manner. Thalox is prepared to provide the customer with his data in electronic form within one month after termination of the contract. The expenses incurred as a result of this will be invoiced separately to the customer.

(7) The customer is solely responsible for compliance with statutory retention obligations (e.g. due to tax regulations) with regard to his customer data.

(8) Any use of the software after termination of the contractual relationship is not permitted.

§ 14 | Force majeure |

Neither of the contracting parties shall be obliged to fulfil the contractual obligations in the event of and for the duration of force majeure. In particular, the following circumstances shall be considered as force majeure in this sense:

• fire/explosion for which the contracting party is not responsible,
• Pandemics,
• Flooding,
• War, mutiny, blockade, embargo,
• industrial dispute lasting more than 6 weeks and not culpably brought about by the contractual partner,
• technical problems of the internet that cannot be influenced by a contractual partner.

Each contracting party shall immediately notify the other in writing of the occurrence of a case of force majeure.

§ 15 | Final Provisions |

(1) German substantive law shall apply to all contractual relationships with Thalox to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(2) The possible invalidity of individual provisions of these GTC shall not affect the validity of the remaining content of the contract.

(3) If, in the practical application of the respective contract or these GTC, gaps arise which the contracting parties have not provided for, or if the ineffectiveness of a provision is established in a legally binding manner or by both contracting parties in agreement, they undertake to fill or replace this gap or ineffective provision in a factual and appropriate manner oriented to the economic purpose of the contract.

(4) Insofar as these GTC or other contractual documents are also translated into other languages, this shall only serve as a reading aid. In the event of disputes or questions of interpretation, only the German version shall be used.

(5) The exclusive place of jurisdiction for all contracts with Thalox is the district court responsible for 86633 Neuburg a.d. Donau, unless a norm mandatorily orders a different place of jurisdiction.

— Status: December 2022 —