Fanomena GmbH (hereinafter known as: FANOMENA)
Tel.: +49 681 8449 2557
Managing Directors: Marc Grewenig, Max Ulbrich
Court of registration Saarbrücken HRB 102270
These General Terms of Contract shall apply to all the contracts concluded by FANOMENA with our customers concerning use of our product eventbaxx. The contents of the contract shall solely apply to this contractual relationship with the customer, including the General Terms of Business employed by us, particularly these general terms of contract for eventbaxx – Application Service Providing Contracts. Inclusion of the customer's General Terms of Business is hereby expressly opposed! If and insofar as interested sponsors make avail of the eventbaxx 'Sponsor Marketplace' function, these General Terms of Contract shall apply to sponsors accordingly.
eventbaxx shall provide our customer the technical possibility and rights to access via telecommunications a software application hosted on a third-party server and enjoy the functionalities of the software application as part of this Contract.
3a.1 eventbaxx is a web-based software-as-a-service product. 3a.2 eventbaxx shall allow our customers, organisers of events of all types and scales, to share their offers, campaigns and information in digital (mobile) form with the event visitor/participant (User). 3a.3 Event organisers shall obtain access via a login system to the product (dashboard) where they can create and manage their events. In addition to creation and management of partners/sponsors, coupons, participants and sending the digital goodie bag to its participants, the event organiser shall have access to statistics that analyse and assess use of the event visitors'/participants' (Users') goodie bag. 3a.4 Event participants (users) shall have web-based access to this digital goodie bag and shall be able to read, use and avail themselves of offers, campaigns and information. § 3b Sponsor Marketplace 3b.1 By means of the 'Sponsor Marketplace' function, eventbaxx shall offer our customers the possibility of finding sponsors for the events advertised by the customers. Registration shall be required in order to use this function. 3b.2 The eventbaxx 'Sponsor Marketplace' function shall be exclusively intended for companies in the sense of § 14 of the BGB (German Civil Code). 3b.3 Potential sponsors of events shall be able to express their non-binding interest in event sponsoring by means of the eventbaxx 'Sponsor Marketplace' function. Publication of any potential interest shall not represent a binding contractual offer, but instead shall serve as an invitation to treat, i.e. an invitation to our customers to communicate to the sponsors a concrete offer to conclude an eventbaxx sponsoring contract. The customers will subsequently be able to communicate a concretised and legally binding offer to conclude an eventbaxx sponsoring agreement as part of the eventbaxx 'Sponsor Marketplace' function. If the sponsors accept this offer, a legally binding eventbaxx sponsoring contract will be concluded, the subject of which being that the customer shall include a coupon provided by the sponsor or developed on behalf of the sponsor in the former's event goodie bag and the sponsor shall pay the customer the sponsor's fee agreed in this connection. 3b.4 The fee due by the sponsor shall be collected by FANOMENA on behalf of and for the account of our customers. Debt-discharging payment shall only be possible to FANOMENA. FANOMENA shall invoice the customer the remuneration paid by the sponsor to FANOMENA vis a vis the customer within 4 weeks of completion of the event and shall pay the sponsoring contract fee within the same period by bank transfer to the bank account indicated to FANOMENA by the customer. FANOMENA shall be entitled to retain the remuneration agreed with the customer amounting to 15% of the sponsor's fee.
4.1 Our customer shall receive the non-exclusive right, which is limited in time to the term of this contract, to access eventbaxx via telecommunications and to use by means of a browser the functionalities associated with eventbaxx according to the eventbaxx contract. The customer shall not be assigned any other rights beyond this purpose, particularly over eventbaxx, the software application or the operating software.
4.2 The customer shall not be entitled to use eventbaxx beyond the use allowed in accordance with the eventbaxx contract in addition to these General Terms of Contract or allow use by third parties beyond the use allowed in accordance with the eventbaxx contract in addition to these General Terms of Contract or render the service accessible to third parties beyond the use allowed in accordance with the eventbaxx contract in addition to these General Terms of Contract. In particular, the customer shall not be entitled to copy, alienate or surrender for a limited period eventbaxx or parts thereof and shall above all refrain from its leasing or lending.
4.3 If contractual use of eventbaxx is impaired by third party property rights without any fault on the part of FANOMENA, FANOMENA shall be entitled to deny the affected services. FANOMENA shall notify the customer immediately thereof and allow the customer access to the latter's data in an appropriate manner. Our customer shall not be obliged to make any payment in this case. Other claims or rights on the customer's part shall remain unaffected.
5.1 Both parties shall observe the respectively applicable data privacy provisions, particularly those prevailing in Germany and shall bind their employees deployed in connection with the contract to maintain data secrecy according to § 5 of the BDSG (German Data Protection Act), insofar as they are not already generally bound in this respect.
5.2 If the customer records, processes or uses personal data, either independently or through FANOMENA, the customer shall warrant that s/he is entitled to do so according to currently applicable, particularly data privacy, provisions and shall release FANOMENA from third-party claims in case of any violation.
5.3 It is hereby clarified that the customer shall remain 'owner of the data' both generally on an order basis and in the data privacy sense (§ 11 of the BDSG (German Data Protection Act). Our customer shall be the exclusive rights holder with regard to the power of disposition and ownership of all customer-specific data (inputted data, processed and saved data, outputted data). FANOMENA shall not perform any control of the data and contents saved on behalf of the customer with regard to the legal permissibility of recording, processing and use thereof; the customer shall solely bear this responsibility. FANOMENA shall only be entitled to process and/or use the customer-specific data according to the customer's instructions (e.g. for fulfilment of deletion and disabling obligations) and within the context of this contract; FANOMENA shall be forbidden in particular to render the customer-specific data accessible to third parties by any means whatsoever without the customer's prior written consent. This shall also apply if and insofar as a modification or amendment is made to customer-specific data. In contrast, FANOMENA shall be entitled to process and use the customer's data within that which is permissible under data privacy regulations during the validity period of this contract (e.g. usage data for assessing eventbaxx uses or accounting data for the purpose of invoicing services to the customer).
5.4 The software application, server and operating software in addition to other eventbaxx system components will be operated in a thirdparty computing centre. FANOMENA shall willingly provide the customer the contact details of the third party on request. FANOMENA may allocate subcontracts, but must however impose on the subcontractor the duties corresponding to the preceding clause (order data administration).
5.5 FANOMENA shall take the technical and organisational safety precautions according to the appendix to § 9 of the BDSG. Our customer shall on principle not be entitled to call for access to the premises containing the software application, server and operating software, in addition to other system components of eventbaxx. Access rights on the part of the customer's data privacy administrator following written notification for verification of fulfilment of the requirements according to the appendix to § 9 of the BDSG in addition to other handling of personal data by FANOMENA in compliance with the law and the contract as part of operating eventbaxx according to this contract shall remain unaffected.
6.1 The customer shall meet the obligations incumbent on the latter for service provision and execution of the eventbaxx contract. The customer shall in particular
6.1.1 pay the agreed prices promptly;
6.1.2 protect the rights of use and access allocated to him/her in addition to identification and authentication safeguards against access by third parties and refrain from disclosing the same to unauthorised users;
6.1.3 ensure that all commercial trademark and copyrights are observed (e.g. when importing third-party texts and data to FANOMENA servers);
6.1.4 obtain the necessary consent of the respective party involved, insofar as the customer records, processes or uses personal data within the context of use of eventbaxx and no legal basis for permission exists;
6.1.5 refrain from misusing or allowing misuse of eventbaxx; in particular, refrain from forwarding any information offers including illegal or immoral contents or making reference to information that serves incitement to hatred against segments of the population, leads to criminal offences or glorifies or trivializes violence, is sexually offensive and/or pornographic, has the potential to undermine the morality of children or young persons or adversely affect their wellbeing or may be detrimental to the reputation of FANOMENA;
6.1.6 refrain from any attempt, either independently or through unauthorised third parties, to retrieve data without permission or intervene or bring about intervention in programs operated by FANOMENA or gain unauthorised access to FANOMENA data networks;
6.1.7 abstain from misusing the possibility of exchanging electronic messages for unsolicited forwarding of messages or information to third parties for advertising purposes (spamming);
6.1.8 release FANOMENA from all third-party claims based on illicit use of eventbaxx by the customer or occurring with the latter's consent or that arise in particular from data privacy, copyright or other legal disputes, associated with the use of eventbaxx. If the customer is aware, or is in a position to be aware that such a violation is imminent, the customer shall have a duty to notify FANOMENA immediately;
6.1.9 back up the data transferred to FANOMENA regularly and appropriately to the risk level, at least once a day however and create own backup copies in order to ensure restoration of the data and information in case of loss thereof;
6.1.10 scan the data and information for viruses before dispatch and deploy state-of-the-art antivirus programs;
6.1.11 safeguard by download the customer's data volumes present in the system in addition to the analyses performed by FANOMENA up to the time of termination of the eventbaxx contract, since no customer access to these data volumes is possible after termination of the contract.
6.2 Access to eventbaxx shall be performed by telecommunications. The prerequisites for use of eventbaxx are:
6.3 Provision of these prerequisites in addition to the telecommunications services including the transfer services from the service transfer point to the devices used by the customer are not subjects of this contract and are the customer's responsibility instead.
7.1 FANOMENA shall be entitled, in case of unlawful breach by the customer of any of the essential obligations laid down in this contract, particularly in case of breach of the duties mentioned in § 6.1.5 – 6.1.7 to disable access to eventbaxx and the latter's data. Access shall only be restored once the breach of the essential obligation in question has been permanently eliminated and/or the risk of repetition has been ruled out by an appropriate cease-and-desist declaration, under penalty, vis a vis FANOMENA. In this case, the customer shall still be bound to pay the agreed prices.
7.2 FANOMENA shall be entitled to delete the data involved in case of an infringement against § 6.1.5 – 6.1.7.
7.3 If a culpable breach on the customer's part exists in the cases of § 7.1 and § 7.2, the cus- tomer shall undertake to pay compensation for damages amounting to 10,000.00 €. The amount of compensation is to be set higher or lower if greater damage is proven by FANOMENA or less damage is proven by the customer; the customer may also prove that no damage exists. FANOMENA shall reserve the right to assert other claims for compensation.
7.4 In case of an illegal breach of the obligations stipulated in § 6.1.5 – 6.1.7 by a user authorised by the customer, the customer shall immediately communicate to FANOMENA at the latter's request all the necessary information for assertion of the claims against the user, particularly the latter's name and address.
8.1 The customer shall pay the prices agreed in the contract document.
8.2 Prices shall be due upon invoicing. The amount invoiced must be credited to the account stated on the invoice by the tenth day at the latest after invoice receipt.
8.3 All prices are net prices and shall bear the currently applicable statutory value added tax.
9.1 FANOMENA shall be unlimitedly liable vis a vis the customer in case of deliberate action or gross negligence for all damages caused by the former and by his/her legal representatives or agents of vicarious liability.
9.2 In case of slight negligence, FANOMENA shall be unlimitedly liable in case of injury to life, limb or health. Otherwise, FANOMENA shall only be liable if FANOMENA has breached an essential contractual duty (cardinal duty). In these cases, the liability shall be limited to compensation for the foreseeable, typically arising damage. Additionally and primarily, the liability on the part of FANOMENA for damages and reimbursement of expenses owing to slight negligence shall be limited in total - irrespective of the legal grounds - to the remuneration agreed on conclusion of the contract. Liability according to 9.1 and 9.2 clause 1 shall remain unaffected by this paragraph.
9.3 The strict liability of FANOMENA for compensation for damages (§ 536 a BGB (German Civil Code)) for defects existing on contract conclusion shall be excluded. § 9.1 and 9.2 shall remain unaffected.
9.4 Liability according to the provisions of the product liability law shall remain unaffected.
10.1 FANOMENA shall be exempted from the duty to perform its service under this contract if and insofar as the non-performance of services is attributable to the occurrence of circumstances of force majeure after conclusion of the contract.
10.2 War, industrial action, unrest, expropriations, substantial changes in law, storm, floods and other natural catastrophes for example shall be considered circumstances of force majeure, in addition other circumstances beyond the control of FANOMENA.
10.3 Each contractual party shall immediately inform the other contractual party in writing of the onset of a case of force majeure.
11.1 The contract shall enter force at the beginning of the agreed contractual term and shall end on expiry of the agreed contractual term. The agreed contractual term shall be derived from the eventbaxx contract.
11.2 The right of termination for a serious cause shall remain unaffected. Notice of termination must be served in writing.
12.1 The customer may only transfer the rights and obligations arising from this contract to third parties subject to written consent of FANOMENA.
12.2 German Law shall apply to the contractual relationships. Place of jurisdiction shall be Saarbrücken.