The LOXEO Online Portal is a digital platform for the value chain in the plant and machinery construction industry (“Platform” or “Loxeo”). It is operated by LOXEO GmbH, (“LOXEO”, “we”, “us”, “our”), Carl-Benz-Str. 34, 74321 Bietigheim-Bissingen. The following terms apply to the use of the functionalities, products and services offered through Loxeo.
1. THE SUBJECT MATTER OF THE CONTRACT AND ITS AREA OF APPLICATION
1.1 This use agreement regulates the provisions and terms for the purchase and use of the Platform offer. Additional product-specific provisions and conditions for use may apply (“Product-Specific Terms”).
1.2 The Platform offer includes products and services of LOXEO as well as those of authorized third parties (“Platform Partners”). For these products and services offered by Platform Partners, the Product-Specific Terms of the respective partner (e.g. in the form of app usage terms or software licensing terms) apply in the relationship between the customer and the Platform Partner. The applicability of this use agreement between the customer and LOXEO remains unaffected by this.
1.3 The general purchasing or other terms of the customer do not apply here unless LOXEO expressly agrees in writing to incorporate them.
2. REGISTRATION AND ACCESS
2.1 The Platform is tailored exclusively to companies (as defined in section 14 of the BGB
2.2 A requirement for authorization is registration on the Platform, by providing all the relevant information (in particular first name, last name, mail address, company/company address, telephone number) and consent to this use agreement. Persons who complete the registration for the customer and/or subsequently initiate orders must be sufficiently qualified, reliable and authorized to conclude corresponding contracts for the customer (“Customer Administrator”). The customer recognizes that the person who registers the customer is authorized to perform the customer registration. The customer must ensure that the Customer Administrator provides full and truthful information. If the data that are entered change after the registration, the customer must correct the information immediately on the Platform.
2.3 The right to use the Platform offer (“Platform Access”) granted to the customer with the authorization is only valid for the customer's own internal purposes, and it may not be sub-licensed or transferred.
2.4 The user interface accessible through the Platform Access may be used by the Customer Administrator and Authorized Service Users. The access data and the Platform membership may not be conveyed or made accessible to third parties. The customer may register only once and create only one (company) profile.
2.5 The customer's sub-users (“Authorized Service Users”) may only be selected, sufficiently qualified employees or managers who are obligated to maintain confidentiality. Registering an Authorized Service User does not result in a separate contractual use relationship between LOXEO and the Authorized Service User.
2.6 Platform use for purposes other than those provided by this use agreement is not permitted unless LOXEO has given its express consent beforehand.
3. PLATFORM OFFER
3.1 Information about the performance and contents of the products and services offered through the Platform can be found in the specific descriptions of the respective products and services (“Product Descriptions”).
3.2 Unless expressly agreed otherwise, the place of performance is always the corporate headquarters of LOXEO.
4. ORDERS AND CONCLUSION OF CONTRACTS
4.1 LOXEO offers are subject to change and are non-binding.
4.2 Customer orders are considered binding contractual offers. Orders for partner products are forwarded to the respective partner. LOXEO product offers can be accepted by LOXEO within 10 (ten) business days from their receipt. LOXEO can declare its acceptance either through its first fulfillment action that is identifiable by the customer or through a separate acceptance confirmation.
4.3 The products or services are purchased through a special area (“Marketplace”) of the user interface accessed through the Platform Access.
4.4 The products and services displayed in the Marketplace represent a legal request to the customer to make an offer to enter into a contract. The customer submits the offer by clicking on the relevant button in the Marketplace, if necessary after providing the required additional information (for example concerning the scope of the order).
4.4.1 Immediately after receiving the order from the customer, LOXEO will confirm receipt of the order. This receipt confirmation does not represent a declaration of acceptance.
4.4.2 If the order and acceptance refer to a LOXEO product, a contract between LOXEO and the customer will result.
188.8.131.52 If partner products are involved, a contract only between the customer and the Platform Partner results. Even if this transaction is negotiated through the Platform, LOXEO assumes no responsibility to the customer for the respective partner products.
4.4.3 After the Platform is released for use, it is the customer's responsibility – unless otherwise agreed – to internally release it to its Authorized Service Users (“Internal Release”). The Internal Release may only be done through the administration portal provided for this purpose on the user interface of the Platform (“Admin Portal”)
4.4.4 The Internal Release by the customer may only be done within the limits of the respective rights which it has acquired.
4.4.5 Over-use will require corresponding payment by the customer.
4.4.6 Unless otherwise agreed, the customer is responsible for ensuring that its Authorized Service Users download the respective application software for mobile operating systems required for the use of service apps (“Mobile Apps”) from the app stores for the respective operating systems. Use of the service apps through Mobile Apps requires the release of the respective Authorized Service User in the Admin Portal and the input of the access data generated about the user.
5.1 Sign-on and registration on the Platform are free of charge.
5.2 All prices indicated in the Marketplace are understood to be exclusive of statutory sales tax at the applicable rate in each case.
6. USE RIGHTS
6.1 The scope of use rights to the purchased product or service can be found in the Product-Specific Terms.
6.2 The customer is only allowed to download, save, copy, duplicate, print or utilize contents contained on or accessible through the Platform if the corresponding option is part of the Platform offer.
6.3 Without prior express authorization by LOXEO, the customer is not permitted to allow the use of Platform contents by persons other than the Authorized Service Users, to use them on behalf of third parties, to offer them or make them available to third parties or to publish or distribute them.
6.4 All rights to and concerning all subjects of rights and protected contents remain with the original rights holder.
7. DATA SECURITY, DATA USE, DATA PROTECTION
7.1 LOXEO and the customer will adhere to their applicable data protection provisions for protecting personal data.
7.2 Personal data of the customer's employees and Authorized Service Users will only be gathered, processed and stored if this is required to justify and complete the customer's Platform membership and to process orders and provide services. Details in this regard can be found in the data protection instructions in the respective Product-Specific Terms.
8. SERVICE QUALITY AND AVAILABILITY
8.1 LOXEO assumes no guarantee for the secure, uninterrupted or error-free operation of the Platform and/or services. LOXEO assumes no warranty for the suitability of the Platform functions for a specific purpose.
8.2 Specific availabilities and service levels only apply provided that they are part of the respective Product-Specific Terms. Otherwise, LOXEO will strive, with the professionalism expected in the market, to keep interruptions to the operation of the Platform and the services to a minimum.
8.3 LOXEO takes no responsibility for non-availability or malfunctions of the Platform and services which
8.3.1 are due to causes outside the control of LOXEO (for example natural catastrophes, wars, terror attacks, riots, work disputes, state actions, power or equipment failures, and other causes at the customer's location or between the customer's location and the computing center used by LOXEO);
8.3.2 result from the use of services, hardware or software not supplied or expressly recognized by LOXEO, including problems related to insufficient bandwidth or software or services of third parties;
8.3.3 are caused by the improper use of the Platform or by the customer using a service after the customer had been instructed to change its use of the Platform service, and the customer failed to change its use;
8.3.4 are caused by unauthorized actions (including erroneous entries) or neglect of a required action by the customer or its employees, representatives, contractual partners or suppliers, or by other persons who have gained access to the Platform or are caused in another way through the customer's failure to adhere to the appropriate safety measures.
9.1 LOXEO is entitled at any time to change the system requirements applicable to the use terms for the use of the Platform (“Changes”). This includes, in particular, regular technical and functional updates, which, however, LOXEO is not obligated to provide.
9.2 LOXEO will notify the customer of significant Changes in an appropriate manner and with appropriate advance notice. Significant Changes include, in particular, those which have a noticeable effect on the availability, functionality or quality of services or which affect the contractual relationship.
9.3 If the Change has a significant detrimental effect on the availability of the functional scope or quality of services for the customer, the customer is entitled to exercise a special termination right with regard to the affected service. The exercising of this special termination right must be declared in writing and must be received by LOXEO within a period of 15 (fifteen) business days from the customer's receipt of notification of the Change.
9.4 Changes in the use terms become effective if LOXEO has not received a written objection from the customer within 30 (thirty) days from the customer's receipt of notification of the Change. In case of an objection from the customer, LOXEO has a special termination right with regard to all contractual relationships affected by the customer's refusal to accept the Change. The customer will be separately notified of this consequence with the announcement of the Change(s).
10. RESPONSIBILITY AND COOPERATION OBLIGATIONS FOR THE CUSTOMER
10.1 The customer must make sure that the applicable system requirements are met in its operating environment.
10.2 The customer must ensure that only the Customer Administrator and Authorized Service Users access the Platform and use the services.
10.3 The customer is solely responsible for the behavior of the Customer Administrator and the Authorized Service Users. Also, the customer must ensure that the Customer Administrator and the Authorized Service Users are aware of and are adhering to this use agreement. In this regard, the agreement refers in particular to the ban on use of private terminal devices and on listing private contact data, and to the requirement to provide truthful data.
10.4 If the Customer Administrator and/or Authorized Service Users leave the company, the customer will take all required actions to ensure uninterrupted use of the Platform and services in accordance with the contract. Such actions include, in particular, immediate change in the passwords known to the aforementioned individuals and immediate de-registration of the former Authorized Service Users through the Admin Portal.
10.5 The customer must take the actions required to protect and secure the data which LOXEO may provide to it and the contractual elements given to it and its Authorized Service Users (such as access data, passwords, etc.). This includes, among other things, sufficient safeguards against accesses by unauthorized individuals or misuse, in particular password procedures/password protection, automatic blocking, virus scanners and firewalls, as well as implementation of other required technical and organizational protective measures.
10.6 If unauthorized access, unauthorized use, unapproved copying, unauthorized forwarding or other unauthorized actions occur in connection with the services, the customer must immediately notify LOXEO of this in text form and must immediately take all required actions and assume all costs to stop the infringement.
11. CUSTOMER VIOLATION OF OBLIGATIONS
11.1 In the event of a serious violation of contractual obligations by the customer or the violation of statutory regulations by the customer, LOXEO is entitled to discontinue the services for the duration of the violation or offense and/or to block customer access to the Platform. Ongoing claims and rights of LOXEO, in particular termination rights, remain unaffected by this.
11.1 The customer must exempt LOXEO from all demands, claims, expenses, costs and damages caused by actions and neglect in connection with the exercising or non-exercising of cooperation obligations of the customer, transgression of service use rights or unauthorized or unlawful use of the Platform, services or data.
12.1 Each of the contractual partners must maintain secrecy concerning the confidential information of the other contractual party and must exercise the same degree of care as that exercised concerning the partners’ own operational and business secrets that are similarly important, but at least an appropriate degree of technical and organizational confidentiality measures must be taken; such measures include, among other things, sufficient safeguards against access by unauthorized individuals or misuse.
12.2 Confidential information includes all operational and business secrets of the contra-tual parties and all embodied or verbal information and data, such as technical or business data, evaluations, development plans, product development plans and product designs, information about hardware, databases, software used or produced, source code and algorithms, as well as records or knowledge that the contractual partners exchange in connection with the Platform use by the customer and which – embodied in written form or otherwise – is identified as “confidential” or is in a similar category, or if the nature of the information suggests that it is confidential.
12.3 The obligation to maintain secrecy does not exist for information which
12.3.1 before being provided to the receiving party had already been legally known to it without any associated obligation to secrecy;
12.3.2 is or becomes publicly accessible without the receiving party being responsible for such disclosure, provided that confidential information is not considered to be publicly accessible if only portions of it are or become publicly accessible;
12.3.3 is shared with or provided to the receiving contractual party by a third party legally and without an obligation to confidentiality, provided that the third party – as far as the receiving contractual partner is aware – has not violated any confidentiality obligation of its own;
12.3.4 had been developed by the receiving contractual party independently of and not reliant on any confidential information or according to the exceptions regulated in the above sections;
12.3.5 must be disclosed based on a binding official or judicial order or compulsory statutory regulations, provided that the other contractual partner had been notified of the disclosure in writing; or
12.3.6 had been expressly released by the contractual partner providing the information.
13.1 LOXEO is subject to unlimited liability in the event of personal injuries, fraudulent intent and for all damages caused intentionally or through gross negligence by the legal representatives or agents of LOXEO.
13.2 Otherwise, LOXEO is only liable for any violation of an essential contractual obligation according to its merits. Essential contractual obligations are obligations whose fulfillment make the proper use of the Platform or a service possible in the first place, and those which the customer can regularly rely on as being adhered to. The total liability for violation of such an essential contract obligation is limited in amount to damages which are typically foreseeable at the time the contract is concluded.
13.3 Otherwise, the liability of LOXEO for damages caused by simple negligence is excluded irrespective of their legal grounds. This also applies to the benefit of any legal representatives, employees, agents and subcontractors of LOXEO to whom a transfer of obligations had been made.
13.4 The above liability limitations do not apply if an express guarantee is assumed by LOXEO or if the liability falls under the scope of the Product Liability Act.
13.5 Compensatory damage claims against LOXEO and its legal representatives, employees, agents and subcontractors expire one year after their occurrence. Cases listed in Clause 13.1 are exceptions to this.
13.6 LOXEO does not test any of its partners' products and services. In particular, LOXEO is not liable for the correctness, completeness, legality and current status of the same and also assumes no guarantees for them, in particular not for their quality or suitability for a specific purpose.
14. TERM, TERMINATION
14.1 The use relationship formed through the registration for Platform membership has an unlimited duration.
14.2 The customer can normally terminate its Platform membership at any time with a notice period of 30 (thirty) business days to the end of a given month.
14.2.1 Free services used by the customer at the time of termination automatically end at the end of the Platform membership or if the use relationship is ended by LOXEO.
14.2.2 In the case that one or more contracts are in place for paid services, the Platform membership or use relationship can be terminated at the earliest with the expiry of the most recently ended minimum term of a service or at the time of the earliest possible termination for the respective service. This also applies if a performance relationship still exists with one or more Platform Partner(s) concerning partner products.
14.3 The option for LOXEO or the customer to terminate without notice for good cause remains unaffected by this. Good cause is in effect when facts exist which, considering all circumstances and weighing the interests of both sides, make the continuation of the Platform membership or a service unreasonable for the terminating contractual party. This is the case in particular
14.3.1 when an essential contractual obligation is violated, if, despite a written reminder and a reasonable deadline, the violation of the obligation was not remedied by that time; in this case, no reminder is needed if the basis of trust for further execution of the contract has been shaken by the initial violation of the obligation such that it cannot be restored;
14.3.2 if the customer has suspended its business operations or threatens to do so, has filed for or started insolvency proceedings or if foreclosure has been started against the customer due to its inability to pay;
14.3.3 due to force majeure lasting for more than 2 (two) months.
14.4 If LOXEO is entitled to a right of withdrawal or termination according to this use agreement or the use terms, this does not affect other statutory termination or withdrawal rights and other contractual or statutory compensatory damages claims by LOXEO.
14.5 Ordinary terminations are declared as effective either through a declaration in text form as a minimum, or by de-registration from the Platform. Extraordinary terminations must be made in written form to be effective.
At the end of the Platform membership and the end of the use relationship, customer access to the Platform ends as well as its right to purchase products and services. All materials which were provided to the customer for a limited period of time (such as hardware or software) must be relinquished to LOXEO by the customer within 20 (twenty) days at the latest after the end of the Platform membership and any copies/duplicates still in its possession must be destroyed.
The obligations to confidentiality do not limit LOXEO's right to name the customer as a Platform user (for example on websites, at trade shows, presentations, etc.). The customer hereby expressly agrees to the use of its company name and its corporate identifiers (primarily trademarks) for the aforementioned purpose.
17. OTHER PROVISIONS
17.1 Neither of the contractual parties is entitled to transfer its rights or claims from the contractual relationship without the prior written permission of the other contractual partner. Excepted from this is the transfer of rights or claims from LOXEO to Platform Partners which are associated with the services rendered by the Platform Partners for the customer.
17.2 This use agreement and its interpretation are subject to the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply. The exclusive court of jurisdiction for all disputes as to rights and obligations from this use agreement, including its effectiveness, is the headquarters of LOXEO.
17.3 If individual provisions of this use agreement are or become entirely or partially ineffective or unenforceable, the validity of the remaining provisions of this use agreement are not affected by this. The contractual partners will immediately replace the ineffective provision with one that is closest to the legal and economic purpose of the ineffective or unenforceable provision. Until such time, said provision is deemed to be agreed on. The above applies correspondingly for the closing of any loopholes in the contract.