Terms & Conditions

2. General Terms And Conditions Of ESPOTO GmbH

I. General provisions

§ 1 Scope of application

(1) espoto GmbH, Am Luftschiffhafen 1, 14471 Potsdam ("ESPOTO") provides its deliveries and services in business transactions with entrepreneurs, legal entities under public law or special funds under public law exclusively on the basis of these General Terms and Conditions ("GTC"), unless otherwise stipulated in individual contracts. Insofar as the following refers to performance or services, this shall be understood to mean all deliveries and services of any kind whatsoever provided by ESPOTO to the customer in accordance with sentence 1.

(2) ESPOTO does not provide any services to consumers within the meaning of Section 13 of the German Civil Code (BGB) subject to these GTC. In connection with the services referred to in paragraph 1, the GTC shall also apply to all pre-contractual obligations and to all future contracts, even if they are not expressly agreed again. For a future contract, a newer version of the GTC shall apply, rather than the present version, if ESPOTO has informed the customer of the existence of the newer version before or at the latest upon conclusion of the contract and of how the customer can easily take note of its content.

(3) In the event that the customer does not wish to accept the GTC, it must notify ESPOTO of this in writing before or upon conclusion of the contract. Deviating (purchasing) conditions of the Customer or third parties are rejected. Therefore, the terms and conditions of the Customer or third parties shall not apply even if ESPOTO does not separately object to their validity in individual cases or if ESPOTO refers to a letter containing or referring to the terms and conditions of the Customer or a third party.

(4) No authorized dealer agreement or other distribution agreement shall be concluded between the parties, even in the event of repeated deliveries. Neither exclusivity nor territorial protection are agreed. Such agreements must be made in writing; this also applies to any agreement to waive the written form. The application, including the analogous application, of commercial agency law is excluded.

(5) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

§ 2 Definitions

For the purposes of these GTC is or are

1. working day Monday to Friday with the exception of public holidays in Brandenburg and with the exception of December 24 and 31;

2. order a binding offer by the customer to conclude an individual contract;

3. individual contract means the contract concluded in an individual case within the scope of these GTC;

4. an event (e.g. scavenger hunt, quiz, city rally, escape game, geocaching, guided tour, trade fair or museum tour, safety briefing) using the Serious Games Software;

5. free license a free license that permits the use, redistribution and modification of copyrighted works under certain conditions specified in the license conditions (e.g. for open source software under the BSD license or for images under the Creative Commons License);

6. content data Data that is uploaded to ESPOTO's servers by the customer or at the customer's instigation or otherwise transferred to ESPOTO's IT systems by the customer or at the customer's instigation;

7. response time the period beginning with the error message until the time at which ESPOTO begins to rectify the error; if the response time is specified in hours, only hours within normal business hours shall be taken into account; if days are specified, this means working days, unless the parties have exceptionally agreed to rectify the error outside normal business hours in individual cases; delays for which ESPOTO is not responsible shall lead to a reasonable extension of the response time and shall not give rise to any claims for compensation by the customer;

8. Serious Games Software a standard software developed by ESPOTO, which consists in particular of the (native) serious games app that can be installed on mobile devices, a web app that can be played in the browser with a limited range of functions compared to the serious games app and an editorial system that can also be accessed via the Internet as an administration backend;

9. digital game concept provided by ESPOTO, including the related materials provided to the customer (e.g. concept templates, tasks, print documents, digital and analog media, documentation and other content and ideas);

10. standard software means a computer program, regardless of its form (e.g. web programming, tool, program module, script), which has been developed for the needs of a majority of customers on the market and not specifically for the customer, including any documentation owed; in particular the Serious Games Software in all versions and with regard to all modules, extensions and features by a standard software in the aforementioned sense;

11. normal business hours 9 a.m. to 5 p.m. (CET) on working days;

12. unauthorized content data such content data that violates the law, an official order or morality or contains malware or promote their distribution; This includes, in particular, violations of the General Equal Treatment Act and the provisions of youth and data protection, criminal and anti-competitive acts, violations of third-party rights, namely the general right of personality, the right to one's own image, copyrights, naming rights, trademark rights, company rights and other industrial property rights, company and other industrial property rights, breaches of a trade or business secret as well as pornographic, violence-glorifying, discriminatory, religiously offensive, racist or right-wing extremist content, hate speech, spam and other unwanted advertising, viruses, worms, Trojans and phishing links.

§ 3 Individual contract

(1) An individual contract and thus a contractual commitment for the individual services is concluded by an order confirmation from ESPOTO, by conclusive action, if ESPOTO begins to provide the services in accordance with the contract after the order, or by the Customer accepting a binding offer from ESPOTO. ESPOTO's offers are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. ESPOTO's product and service descriptions do not constitute a binding offer.

(2) In order to be able to use the standard software, the customer must register permanently and create a customer account. The customer account is free of charge and serves to simplify future contract processing. Registration takes place automatically by requesting a test account from the customer or by manually entering the required data into the editorial system following a request or order from espoto. The registration can be revoked by the customer at any time and the data deleted by ESPOTO. After automatic registration via a test account or manual registration, the customer receives an event manager login with an automatically generated password. The customer can change the password in the editorial system or via the native app at any time. ESPOTO reserves the right, on a voluntary basis, to keep the customer account available beyond the duration of the contract. The customer can request the deletion of the customer account at any time.

(3) If the customer orders via an ESPOTO online store, the following shall apply in addition to paragraph 1: After creating a customer account, opening the existing customer account, and filling the shopping cart, an overview page will appear before the order process is completed. There the customer can check the accuracy of his details and correct any errors. The customer can cancel the order process at any time by pressing the "Back" button or a similar button and by closing the browser window. After checking the accuracy of his details on the overview page, the customer places an order by clicking the "Order with obligation to pay" button in the final step of the order process. Once the order has been successfully received, the customer will receive an e-mail confirming receipt of the order and providing all the necessary information about the order. This confirmation e-mail only represents a binding acceptance of the order if this is expressly declared by ESPOTO. The only languages available for the conclusion of the contract are German and English. The information on the individual contract is sent to the customer by e-mail and, in the case of an order via a customer account, is available to the customer until it is deleted.

(4) Insofar as it is possible to set up sub-accounts in the editorial system and in the online store via which individual employees or other representatives of the customer can place orders, the customer shall ensure that the respective person has sufficient authorization to conclude legal transactions and is legally competent. The creation of the sub-account shall be deemed to be a manifestation of authorization within the meaning of Section 171 of the German Civil Code (BGB). If the power of representation is to be withdrawn from the respective person, the customer shall immediately block or delete the sub-account. The power of attorney can only be revoked by blocking or deleting the sub-account. However, any other declaration of revocation (e.g. by e-mail) to ESPOTO does not result in the power of representation ceasing to exist.

(5) If the customer obtains a mobile app via an app download platform, further details on the conclusion of the contract can be found in the information provided by the respective operator of the app download platform. If the customer orders additional functions subject to a charge as part of so-called in-app purchases, paragraph 2 shall apply accordingly to the conclusion of the contract.

§ 4 Content of ESPOTO's services

(1) The specific content of the services owed by ESPOTO is set out in the individual contract together with any agreed contractual amendments and supplements.

(2) ESPOTO is entitled to minor deviations from the agreed service provision, if these do not impair the quality of the service and are reasonable for the customer.

(3) Product descriptions, illustrations, test programs, etc. are performance descriptions and do not constitute a guarantee of quality. The guarantee must be in writing to be effective. It can only be validly declared by a managing director or authorized signatory of ESPOTO. Other employees of ESPOTO are not authorized to declare guarantees.

(4) Apart from liability for material defects and defects of title (§§ 17, 18), ESPOTO shall only be liable for updating digital products (e.g. standard software) if this has been expressly agreed in the individual contract.

(5) As long as ESPOTO's services are free of charge for the customer (e.g. in the case of trial versions of the standard software), ESPOTO's services are purely voluntary and the customer has no claim against ESPOTO for continuation of the services. ESPOTO reserves the right to discontinue the free services in whole or in part at any time without prior notice. In this respect, the customer is also not entitled to receive updates.

(6) ESPOTO may also provide its services through third parties.

§ 5 Download of mobile apps

(1) Insofar as the contractual standard software represents or includes mobile apps, ESPOTO shall make these available to the customer for download via the relevant app download platforms (e.g. Google Play Store, Apple App Store).

(2) ESPOTO has no influence on the operation of the app download platform provided by third parties. ESPOTO therefore neither owes the Customer unhindered access to the app download platform nor does ESPOTO assume responsibility for its availability. ESPOTO's obligations do not include the availability of the download options of the operator of the app download platform. ESPOTO therefore assumes no responsibility for the functionality of the app download platform.

§ 6 Prices and ancillary costs

(1) The prices result from the individual contract together with any agreed contract amendments and supplements.

(2) In the absence of an express price agreement, the prices are based on the current price list valid at the time of conclusion of the individual contract, which can be requested from ESPOTO at any time.

(3) The prices quoted are exclusive of any taxes, duties and customs duties that may be incurred in the cross-border movement of goods and services, the ancillary costs of monetary transactions and the respective statutory value added tax.

(4) Unless otherwise agreed, the customer shall bear all expenses such as travel and accommodation costs, out-of-pocket expenses and third-party claims for remuneration incurred in the performance of the contract. Travel time shall be remunerated.

(5) If the parties have not reached an agreement on the remuneration for a service provided by ESPOTO, the provision of which the customer could only expect in return for remuneration, the customer must pay the usual remuneration for this service. In case of doubt, the remuneration rates charged by ESPOTO for its services shall be deemed customary.

§ 7 Payment and default

(1) Unless otherwise agreed, ESPOTO's invoices are due immediately and, in order to avoid default, are payable without deduction no later than 14 days after receipt of the invoice. In the case of a permissible partial delivery, this can be invoiced immediately. Invoices may be issued electronically. If payment in advance has been agreed, ESPOTO will not perform until payment has been received.

(2) Unless otherwise agreed in individual contracts, the following shall apply to the payment of ongoing remuneration. Insofar as the remuneration

a) is independent of the scope of use or other variables, it must be paid monthly in advance; if the contract begins or ends in the current calendar month, the payment obligation is pro rata;

b) is dependent on the extent of use or other variables, billing takes place after the end of each billing month.

(3) If the customer does not pay by the due date, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default remains reserved.

(4) If the customer is in default, the customer will be charged interest at the statutory rate from the relevant date. ESPOTO reserves the right to claim higher damages for delay. Other rights of ESPOTO remain unaffected; this applies in particular to ESPOTO's rights to refuse performance under Sections 273 and 320 BGB and ESPOTO's right to terminate the contract for good cause.

(5) ESPOTO is entitled to offset payments against older debts of the customer first, despite any provisions of the customer to the contrary, and will inform the customer of the type of offsetting that has taken place. If costs and interest have already been incurred, ESPOTO is entitled to offset the payment first against the costs, then against the interest and finally against the principal claim.

(6) All payments shall be made in euros and, unless otherwise agreed in the individual contract, by bank transfer to an account designated by ESPOTO. A payment is only deemed to have been made when ESPOTO can dispose of the amount.

(7) If ESPOTO becomes aware of circumstances that objectively call into question the creditworthiness of the customer, if the customer ceases to make payments or if a direct debit is returned for lack of sufficient funds, ESPOTO is entitled to declare the entire remaining debt due and payable. In this case, ESPOTO is also entitled to demand advance payments or the provision of security.

(8) ESPOTO is entitled, subject to the statutory requirements, to demand advance payments in the amount of the value of the services provided by ESPOTO and owed under the contract.

§ 8 Dates, deadlines and obstacles to performance

(1) Delivery and performance dates or deadlines are agreed as non-binding. Should they be binding in exceptional cases, this shall require an express written agreement.

(2) ESPOTO is not liable for impossibility of performance or delays in performance due to force majeure or other events unforeseeable at the time of conclusion of the contract - including, in particular, operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, pandemics, strikes, lawful lockouts, official orders or missing, incorrect or untimely delivery by suppliers, even if they occur at ESPOTO's suppliers or their subcontractors, problems with third-party products (e.g. changes or failures of interfaces of connected third-party software) - for which ESPOTO is not responsible. ESPOTO shall not be liable for problems with third-party products (e.g. changes or failures of interfaces of connected third-party software) for which ESPOTO is not responsible. ESPOTO will inform the customer immediately of such circumstances.

(3) Insofar as events for which ESPOTO is not responsible within the meaning of paragraph 2 make it significantly more difficult or impossible for ESPOTO to perform and the hindrance and obstacle is not only of a temporary nature, ESPOTO is entitled to withdraw from the obligation to fulfill the contract; ESPOTO will immediately reimburse any consideration already provided by the customer for the unfulfilled part. If such events lead to hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. ESPOTO will inform the customer of the expected new dates or deadlines without delay. If the hindrance lasts longer than two months, the customer is entitled to terminate the respective individual contract regarding the part not yet fulfilled after setting a reasonable grace period with a threat of refusal. Further statutory rights of the customer remain unaffected. The statutory provisions in favor of ESPOTO regarding the exclusion of the obligation to perform in accordance with § 275 BGB also remain unaffected.

(4) Paragraph 3 sentence 2 shall apply accordingly if the customer fails to provide cooperation in breach of contract, e.g. fails to provide information, fails to provide access, fails to provide materials or fails to make employees available, or if the customer is in default of payment. However, the customer's right to withdraw from or terminate the contract is excluded in these cases.

(5) If the parties subsequently agree other or additional services which affect the agreed deadlines, these deadlines shall be extended by a reasonable period of time.

§ 9 Price changes

(1) Price changes for ongoing continuing obligations (e.g. for Software as a Service) by ESPOTO are made by way of unilateral determination of performance in the exercise of reasonable discretion in accordance with Section 315 BGB. The customer can have this reviewed under civil law in accordance with Section 315 (3) BGB. In the case of unilateral determination of performance by ESPOTO, changes are in particular

a) energy costs,

b) the costs for the use of hardware and software, communication networks, rooms and buildings,

c) labor costs and

d) other costs in connection with the service owed by ESPOTO because of changes in the economic or legal framework conditions

must be considered.

(2) ESPOTO is entitled to make a price change in the event of cost increases and obliged to do so in the event of cost reductions. When determining the price, ESPOTO is obliged to take into account cost increases only by recognizing opposing cost reductions and to balance cost increases and cost reductions.

(3) ESPOTO must determine the scope and timing of a price change in such a way that cost reductions are taken into account in accordance with the same economic standards as cost increases. In particular, ESPOTO may not pass on cost reductions later than cost increases. For price changes, only those cost changes are taken into account which were not foreseeable for ESPOTO at the time of conclusion of the contract in terms of their specific nature, the time of their occurrence and their specific scope or which, irrespective of their foreseeability, only become effective after four months from the conclusion of the contract.

(4) In the event of a price change in accordance with paragraphs 1 to 3, the customer shall have the right to terminate the individual contract informally without observing a notice period and without incurring costs at the earliest at the time the changes take effect. The termination may be declared within three months of the date on which the customer receives ESPOTO's notification of the price change that meets the requirements of paragraph 5. The right of termination is excluded if the price change is exclusively to the benefit of the customer. The other termination rights, in particular the right to ordinary termination in accordance with § 15, remain unaffected.

(5) ESPOTO shall inform the customer of the content and date of the price change and the customer's existing right of termination in accordance with paragraph 4 at least one month and no more than two months before the price change is to take effect, clearly and comprehensibly in text form, indicating the reason for and conditions of the price change.

(6) ESPOTO will pass on to the customer any changes to the value added tax in accordance with the Value Added Tax Act outside of a price adjustment in accordance with paragraphs 1 to 5 without the possibility of extraordinary termination. ESPOTO will inform the customer of the change in a transparent and comprehensible manner before the change comes into effect.

§ 10 Offsetting, retention and assignment

(1) The Customer is only entitled to set-off and retention if the due counterclaims have been legally established, are undisputed or ready for decision. However, the customer is also entitled to set-off without the further requirements of sentence 1 if it wishes to set off a claim against a claim of ESPOTO which is in a reciprocal relationship with the customer's claim (e.g. set-off with a claim for damages due to non-performance or default against the claim for payment of the remuneration owed).

(2) Except within the scope of Section 354a HGB, the Customer may only assign its claims against ESPOTO to third parties with ESPOTO's prior written consent, unless ESPOTO has no legitimate interest in the prohibition of assignment.

§ 11 Provision of materials by the customer, free licenses

(1) If the Customer provides materials (e.g. texts, graphics, images, videos, third-party programs including free licenses) whose use could conflict with third-party rights (e.g. copyrights and industrial property rights, right to one's own image), the Customer is obliged to obtain prior rights clearance and rights to the extent necessary to achieve the purpose of the contract. In particular, the Customer shall check before each provision of materials in accordance with sentence 1 whether the Customer has the necessary rights to use them within the scope of the contract, both itself and in relation to the performance of the contract by ESPOTO. Upon request, the Customer shall immediately provide ESPOTO with evidence of sufficient rights ownership or the acquisition of sufficient rights.

(2) ESPOTO is under no obligation to the customer to verify that the customer has acquired sufficient rights.

(3) The Customer shall compensate ESPOTO for any damage resulting from claims asserted by third parties due to the infringement of property rights and other rights, unless the Customer is not responsible for this. The Customer shall indemnify ESPOTO against all disadvantages incurred by ESPOTO because of claims asserted by third parties due to damaging actions for which the Customer is responsible.

(4) Insofar as it is expedient for the performance of the contract, ESPOTO may copy suitable materials under a free license from publicly available sources on behalf of the customer and make them available to the customer. A separate authorization by the Customer is not required for this. ESPOTO will inform the Customer at any time upon request which materials under a free license have been or are to be used by ESPOTO. Paragraphs 1 to 3 shall apply accordingly, but only insofar and only from the point in time at which ESPOTO has informed the customer of the use of the respective material under a free license and the customer has had sufficient opportunity to check the rights clearance.

§ 12 Change requests

(1) If the Customer wishes to change the contractually agreed scope of the services to be provided by ESPOTO, the Customer shall notify ESPOTO of its request for change. Section 3 ("Individual Contract") applies to the entry into force of the changes to the Individual Contract. The remuneration shall be governed by § 6 ("Prices and ancillary costs"), in particular also by paragraphs 1 and 5 thereof.

(2) The originally agreed deadlines and dates shall be postponed considering the duration of the examination of the change request and, if applicable, the duration of the change requests to be carried out plus a reasonable start-up period, even without the need for express notification.

(3) ESPOTO may, for its part, submit proposals to the customer to change the services, the schedule and the previously agreed remuneration. The above paragraphs shall apply accordingly.

§ 13 Obligations of the customer to cooperate

(1) The customer shall support ESPOTO to a reasonable extent in the fulfillment of ESPOTO's contractual services.

(2) In particular, the customer shall ensure the prerequisites within the customer's sphere of operation, insofar as this is necessary for the contractual provision of ESPOTO's services.

(3) Unless otherwise agreed in the individual contract, the customer shall provide the hardware and software infrastructure required in the customer's sphere of operation and shall take the necessary precautions against unauthorized access to its systems from outside, data loss and the infection and spread of malware (e.g. through antivirus programs, firewalls, penetration tests, data backup and in particular appropriate backup routines according to the current state of the art for both data and programs, fault diagnosis, regular testing of the results, emergency planning).

(4) The customer is obliged to take suitable precautions to protect any standard software provided or made accessible to the customer by ESPOTO from unauthorized access by third parties. In particular, the Customer shall store access data and user documentation in a secure location. The Customer shall also expressly instruct its employees and vicarious agents as well as other users who use the standard software in accordance with the provisions of the individual contract to comply with these contractual terms and conditions and the provisions of copyright law.

(5) The customer shall

a) to provide complete and truthful information for necessary registrations and other queries required to achieve the purpose of the contract,

b) to the extent required for registration, to choose a user name that does not infringe the rights of third parties or other name and trademark rights or offend common decency,

c) to keep the password secret and not to disclose it to third parties under any circumstances; the customer must inform ESPOTO immediately if there are indications that his access is being or has been misused by third parties,

d) to notify ESPOTO immediately of any subsequent changes to the requested data.

(6) Paragraph 4 sentence 2 applies accordingly to registrations and the use of user accounts.

(7) The customer undertakes to inform ESPOTO immediately if there is a change in the person, address, name, legal form or company.

(8) All of the Customer's obligations to cooperate are primary obligations. The Customer is obliged to provide ESPOTO with evidence of the fulfillment of its obligations at any time upon request. The Customer shall cooperate at its own expense.

§ 14 Property rights

(1) Subject to any deviating provision in these GTC and in the individual contract, the copyright, patent rights, trademark rights and all other property rights to all items that ESPOTO provides or makes accessible to the Customer in the context of the initiation and execution of the contract shall be the exclusive property of ESPOTO in the relationship between the parties.

(2) If third parties are entitled to industrial property rights to the items or if these are subject to a free license, ESPOTO shall have corresponding rights of use; in this case, the respective valid license conditions shall apply in deviation.

(3) Insofar as ESPOTO has attached references to its authorship, other property rights including the property rights of third parties, terms of use and license conditions as well as safety and warning notices, disclaimers and limitations of liability, trademarks and logos to these items, in particular also in the source code and on the user interface, the Customer may not remove, falsify or otherwise change these references without ESPOTO's consent; ESPOTO will not refuse consent if there is an important reason for the change.

(4) ESPOTO reserves the title and copyright to all offers and cost estimates submitted by ESPOTO as well as drawings, illustrations, calculations, brochures, catalogs, models, tools, test or demonstration programs and other documents and aids made available to the Customer. The Customer may not make these items accessible to third parties, disclose them, use them itself or through third parties or reproduce them without ESPOTO's express consent. At ESPOTO's request, the Customer must return these items in full to ESPOTO and destroy any copies made if they are no longer required by the Customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 15 Contract duration and termination of individual contracts, processing after termination, deletion of content

(1) The start and end of the individual contracts are determined by the respective individual contract.

(2) If a minimum term is specified in the individual contract, the individual contract may be terminated for the first time by giving one month's notice to the end of the agreed minimum term. After expiry of the minimum term, the individual contract shall be extended by a further year in each case as long as it is not terminated within the period specified in sentence 1.

(3) If a fixed term or a fixed termination date is specified in the individual contract, the individual contract shall end when the relevant date is reached. The parties should therefore hold timely discussions on whether and how to extend the contract.

(4) An individual contract which establishes a continuing obligation on the basis of which recurring services and consideration are to be provided and which does not contain any information on the term of the contract and notice periods may be terminated by giving three months' notice to the end of a calendar month.

(5) The right to terminate for good cause remains unaffected.

(6) Any termination of an individual contract must be in text form.

(7) After termination of the individual contract, ESPOTO is entitled to delete all the customer's content stored in the editorial system.

§ 16 Error classes

(1) The parties define the following error classes:

Error class	Description	Exempels
Class 1 Preventing operation defects	The defect prevents the operation of the contractual delivery or service; there is no workaround.	Malfunctions of central functions that lead to complete failure.
Class 2 Operational hindrances defects	The defect significantly impedes the operation of the contractual delivery or service, but its use is possible with workaround solutions or with temporarily acceptable restrictions or difficulties.	Despite the disruption of a central function, the intended effects can be achieved by means of a bypass solution.   A less central function is omitted; although there is no workaround, it is still possible to work sensibly with restrictions.   Frequently recurring failures or system crashes, significantly reduced performance.
Class 3 Other defects	Other defects	(Beauty) defects.   Errors in the documentation (if contractually owed) that do not cause any subsequent errors.   Shortcomings in user-friendliness.   Individual functions take too long measured against the state of the art, without this leading to unreasonable impairments.   Temporary or other acceptable performance losses, faults that can be easily eliminated with workaround solutions, faults that have no direct impact on operation.

(2) If the defects of class 3 as a whole, lead to a not only insignificant restriction of usability, the defects as a whole may constitute a defect of class 1 or 2.

§ 17 Material defects

(1) The delivery or service has the agreed quality, is suitable for the contractually stipulated or otherwise normal use and has the quality customary for deliveries or services of this type.

(2) Claims for material defects are excluded in particular in the case of

a) contractual relationships for which the law does not provide for claims for material defects, e.g. service contracts;

b) deliveries and services by ESPOTO for which the customer owes no consideration;

c) only insignificant deviations from the agreed quality and only insignificant impairments of usability;

d) impairments resulting from use outside the agreed environmental conditions, incorrect operation, modification contrary to the contract, faulty transport, faulty installation or an item provided or cooperation provided by the customer, insofar as ESPOTO is not responsible for this;

e) defects which remained unknown to the customer at the time of conclusion of the contract due to gross negligence;

f) a delivery or service to a territory outside the Federal Republic of Germany and in the event that the delivery or service is to be resold or used in a territory outside the Federal Republic of Germany as intended, insofar as the delivery or service in the territory concerned violates technical standards, statutory or other sovereign provisions which ESPOTO neither knew nor should have known; ESPOTO is not obliged to examine the specifics of foreign law.

All other statutory or contractual exclusions of claims for defects shall remain unaffected.

(3) The Customer shall support ESPOTO in the error analysis and rectification of defects by specifically describing any problems that occur and providing ESPOTO with comprehensive information. In particular, the Customer shall notify ESPOTO of defects with a precise description of the error symptoms and the expected application behavior and shall also provide meaningful log files and screenshots as far as possible and reasonable; the Customer shall notify ESPOTO immediately of any changes to the error symptoms with a precise description of the changes. The Customer shall grant ESPOTO the time and opportunity necessary to investigate the alleged defect and to remedy the defect.

(4) At ESPOTO's discretion, the defect shall be remedied by eliminating the defect on site or at ESPOTO's business premises or by delivering an item that does not have the defect. At least three attempts to rectify a defect must be accepted. If it is possible to remedy the defect by means of remote maintenance and reasonable for the Customer, ESPOTO may remedy the defect by means of remote maintenance; in this case, the Customer must provide the necessary technical requirements at its own expense and grant ESPOTO corresponding electronic access after giving prior notice.

(5) The defect may also be remedied temporarily until the final remedy of the defect, which must be carried out within a reasonable period of time, by ESPOTO demonstrating ways to avoid the effects of the defect in the sense of a workaround solution, insofar and as long as this is reasonable for the customer. A new or a previous program version that did not contain the defect shall be accepted by the customer if this is reasonable for the customer. The defect in the apps and their extensions shall be remedied via the app download platform by providing a new program version that does not contain the defect.

(6) If a defect notified by the Customer cannot be determined or ESPOTO is not responsible for the impairment, in particular in accordance with paragraph 2 sentence 1 lit. d), the Customer shall bear ESPOTO's costs in accordance with the agreed or usual prices, unless the lack of defectiveness was not recognizable to the Customer.

(7) In the case of the provision of an item or the other granting of temporary use, the customer may not reduce the current remuneration in the event of defects. Any existing right to reclaim remuneration paid subject to reservation shall remain unaffected. A claim for damages or reimbursement of futile expenses due to a defect which already exists at the time of conclusion of the contract shall only exist if ESPOTO is responsible for the defect; liability for initial defects pursuant to Section 536a (1) BGB, if applicable in conjunction with Section 548a BGB, is excluded.

(8) The exclusions and limitations of the customer's rights under this § 17 shall not apply if ESPOTO has acted fraudulently or has assumed a guarantee for the quality of the item.

(9) Section 19 ("Liability of ESPOTO") applies to the scope and amount of liability for damages and reimbursement of futile expenses due to a material defect for which ESPOTO is responsible.

§ 18 Defects of title

(1) Unless otherwise agreed in the individual contract, ESPOTO warrants that the delivery or service does not conflict with any third-party rights in the European Economic Area and Switzerland. ESPOTO is only obliged to examine conflicting industrial property rights or other intellectual property rights of third parties for the territory specified in sentence 1.

(2) In the event of a delivery or service to a territory outside the territory referred to in paragraph 1 sentence 1 and in the event that the delivery or service is intended to be resold or used in a territory outside the territory referred to in paragraph 1 sentence 1, a defect of title due to a conflicting industrial property right or other intellectual property of third parties shall only exist if ESPOTO knew or should have known of this at the time of conclusion of the contract. The Customer shall therefore carry out the necessary property right searches himself before delivery or use abroad.

(3) In the event of defects of title, ESPOTO warrants that ESPOTO will, at ESPOTO's option

a) modifies or replaces the delivery or service in such a way that the defect of title is remedied and this does not lead to any reduction in quality, quantity or value and is also reasonable for the customer, or

b) provides the customer with the right of use by concluding a license agreement.

(4) The Customer shall inform ESPOTO immediately in writing if third parties assert property rights (e.g. copyrights, trademark rights or patent rights) to the delivery or service. The customer authorizes ESPOTO to conduct the dispute with the third party alone. If ESPOTO makes use of this authorization, the customer may not acknowledge the claims of the third party on its own initiative without ESPOTO's consent. ESPOTO will then defend the claims of the third party. Insofar as the Customer is responsible for the assertion of the infringement of property rights (e.g. as a result of use in breach of contract or failure by the Customer to search for property rights), the Customer shall indemnify ESPOTO against all reasonable costs associated with the defense against these claims and shall reimburse ESPOTO for all further damages and expenses; in this case, ESPOTO shall be entitled to payment of a reasonable advance.

(5) Section 19 ("Liability of ESPOTO") applies to the scope and amount of liability for damages and reimbursement of futile expenses due to a defect of title for which ESPOTO is responsible.

(6) Section 17 (2) sentence 1 lit. a), b), d) and e), sentence 2 as well as (7) and (8) shall apply accordingly.

§ 19 Liability of ESPOTO

(1) ESPOTO's liability for damages, regardless of the legal grounds (e.g. due to impossibility, delay, defective or incorrect delivery or performance, breach of contract and tort), is limited in accordance with this § 19 ("Liability of ESPOTO") insofar as the liability presupposes fault on the part of ESPOTO.

(2) ESPOTO's liability for simple negligence is excluded unless there is a breach of an essential contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer could rely and the non-fulfillment of which jeopardizes the achievement of the purpose of the contract (so-called "cardinal obligation"). In the event of a breach of such a material contractual obligation, ESPOTO's liability for simple negligence is limited to damages foreseeable at the time of conclusion of the contract and typical for the contract.

(3) In the event of gross negligence, ESPOTO's liability shall be limited to damages foreseeable at the time of conclusion of the contract and typical for this type of contract.

(4) The above exclusions and limitations of liability in paragraphs 2 and 3 shall apply to the same extent, including retroactively, to claims arising from the breach of duties during contract negotiations.

(5) Insofar as ESPOTO is not itself obliged to carry out data backup measures, the typical damage foreseeable at the time of conclusion of the contract in the event of data loss corresponds to the typical recovery costs. The typical recovery effort is measured according to the damage that would have occurred if the customer had taken reasonable backup measures on the basis of the diligence of a prudent businessman.

(6) Insofar as the breach of duty by ESPOTO relates to deliveries and services which ESPOTO provides to the Customer free of charge (e.g. as part of a gift, loan or gratuitous business management as well as in the case of pure favors), liability for simple negligence is excluded altogether. In this case, ESPOTO's liability for gross negligence is also excluded if the customer is an entrepreneur, a legal entity under public law or a special fund under public law. Insofar as ESPOTO provides technical information or advice after conclusion of the contract and this information or advice is not part of the contractually agreed scope of services owed by ESPOTO, this is done free of charge and to the exclusion of any liability for negligent incorrect information or advice.

(7) The exclusions and limitations of liability in this § 19 ("Liability of ESPOTO") apply accordingly to claims for reimbursement of futile expenses and to claims for indemnification.

(8) The exclusions and limitations of liability in this § 19 ("Liability of ESPOTO") apply to the same extent in favor of the executive bodies, legal representatives, employees and other vicarious agents of ESPOTO.

(9) The exclusions and limitations of liability in this § 19 ("Liability of ESPOTO") do not apply to the liability of ESPOTO for intentional conduct, for injury to life, limb or health, in cases of fraudulent intent, in the event of the assumption of a guarantee or in the event of claims under the Product Liability Act.

§ 20 Limitation of the customer's claims

(1) The limitation period for claims of the customer against ESPOTO is

a) for claims arising from material defects or defects of title for repayment of the remuneration from withdrawal or reduction one year from submission of the effective declaration of withdrawal or reduction; the withdrawal or reduction is only effective if it is declared within the period of b) for material defects or the period of c) for defects of title;

b) one year for claims arising from material defects which do not involve the repayment of the remuneration from withdrawal or reduction;

c) two years in the case of claims arising from defects of title which do not relate to the repayment of the remuneration from withdrawal or reduction; however, if the defect of title lies in an exclusive right of a third party on the basis of which the third party can demand the return or destruction of the items provided to the customer, the statutory limitation period shall apply;

d) two years for claims not based on material defects or defects of title for repayment of the remuneration, compensation for damages or reimbursement of futile expenses.

(2) Subject to a deviating individual contractual provision, the limitation period shall commence in the cases of paragraph 1 lit. b) and c) in accordance with the statutory provisions, in particular the applicable law on liability for defects, in the case of paragraph 1 lit. d) from the time at which the Customer became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence. The subsequent delivery or rectification shall not lead to the commencement of a new limitation period or an extension of the limitation period, unless ESPOTO has exceptionally declared an acknowledgement within the meaning of Section 212 (1) No. 1 BGB. The limitation period shall expire at the latest upon expiry of the maximum periods specified in § 199 BGB.

(3) Notwithstanding the above, the statutory limitation provisions shall apply

a) in the cases specified in § 19 paragraph 9,

b) in the event of gross negligence in the case of claims for damages, compensation for futile expenses and claims for indemnification,

c) for claims for reimbursement of expenses after termination of a rental agreement,

d) for all claims other than those referred to in paragraph 1.

§ 21 Confidentiality and data protection

(1) The Customer undertakes to treat the content of the individual contracts concluded on the basis of these GTC as well as all information and knowledge obtained in connection with the negotiation and execution of the contract as confidential and not to disclose it to any third party, unless this is necessary for the execution of the contract or disclosure is required by law or has been ordered by a court or authority in a binding manner. The customer shall inform ESPOTO in advance of the forced disclosure, insofar as this is lawful, and limit the disclosure to the extent necessary. Further legal obligations of confidentiality remain unaffected.

(2) In particular, all objects and information disclosed in connection with the game concepts shall be deemed to require confidentiality within the meaning of paragraph 1 sentence 1. The customer shall only make these items and information accessible to employees and other third parties who require access in order to perform their official duties. He shall instruct these persons about the confidential nature of the objects and information.

(3) The customer shall comply with the currently applicable data protection regulations. This also includes technical security measures adapted to the current state of the art (Art. 32 GDPR) and the obligation of employees to maintain the confidentiality of personal data (Art. 28 para. 3 lit. b) GDPR).

(4) The confidentiality obligations under paragraph 1 and compliance with data protection obligations under paragraph 3 shall apply indefinitely.

II. Serious Games Software

§ 22 Subject matter of the contract

(1) ESPOTO makes the Serious Games Software available to the Customer for retrieval via the Internet ("Software as a service" - SaaS) with regard to the Web App and the editorial system (Online Editor / Content Management System) that can be accessed via the Internet within the scope of the agreed availability (§ 27); with regard to the native Serious Games App, which is also part of the Serious Games Software and must therefore be installed locally, there is a temporary transfer of use for Event Applications (§ 24) and Open Applications (§ 25). With the Serious Games Software, ESPOTO also provides the customer with optional game concepts. Further details, in particular regarding the nature and scope of services, the type and number of licenses and the rights of use granted with the relevant licenses, are set out in the individual contract.

(2) If documentation is owed, this shall be provided within the program functions via the "Help" menu or a comparable function.

(3) Unless otherwise agreed in the individual contract, ESPOTO shall not owe any

a) adaptation of the Serious Games Software and the game concepts to changing external conditions of a technical, economic or legal nature,

b) adaptation of the Serious Games Software and the game concepts to other changing framework conditions,

c) further development in terms of quality and modernity.

The obligation to provide new program versions, in particular bug fixes and patches, with which existing material defects, in particular in the sense of security defects or functional errors, as well as defects of title are eliminated, remains unaffected by this.

(4) ESPOTO shall only be obliged to perform data backups and recovery services if and to the extent that this has been agreed in the individual contract.

§ 23 Scope of the customer's rights of use

(1) The right to use the Serious Games Software and the game concepts is of a purely contractual nature, limited to the duration of the individual contract, non-transferable, limited to the purpose of the transfer of the right of use and limited to use at the registered location of the respective event in the territory of the European Economic Area and Switzerland.

(2) The game concepts made available to the customer by ESPOTO, including the associated materials provided to the customer (e.g. concept templates, tasks, print documents, digital and analog media, documentation and other content and ideas) may be individually adapted by the customer. However, the game concepts and associated materials may not be passed on to third parties, whether in their original state or edited. Likewise, the game concepts and associated materials may only be used in connection with the Serious Games Software. Transfer and use of the game concepts and associated materials to other comparable location-based games, quiz or scavenger hunt apps and platforms is not permitted.

(3) If the customer has been granted the right of use free of charge (e.g. in the case of a trial version), it is only of a contractual nature and limited to the trial period (usually 30 days from the date of transmission of the access data).

(4) Any further use requires the prior written consent of ESPOTO.

(5) There is no entitlement to the release of the source code.

§ 24 Event applications

(1) The customer is responsible for his event settings in the editorial system and the resulting billing model from the individual contract or the generally applicable price list. When creating an event, the customer can choose between an event application and an open application when creating an event.

(2) An event application includes all events with a closed or partially closed time frame, a specific or partially specific start and end time and a fully or partially fixed number of teams and players. There is usually a joint start and a joint award ceremony. Examples include classic B2B team events, other events with B2C customers or hiking days with children and young people.

(3) In particular, the following parameters shall be defined in advance, either in part or in full: Location of the event, start date, start time, end time, end date, number of mobile devices, teams and players.

(4) The customer shall register the respective event with ESPOTO at least five working days before the planned event.

(5) The responsibility for the organizational implementation of an event application lies with the customer.

(6) Whether players play the event on their own end devices or the customer's end devices is irrelevant for the distinction between event application and open application.

§ 25 Open applications

(1) The customer is responsible for his event settings in the editorial system and the resulting billing model from the individual contract or the generally applicable price list. When creating an event, the customer can In addition to the event application described under §24, the customer can also choose an open application, depending on the individual contract.

(2) Open applications are public or partially public events with an open and often longer time frame, with no clearly defined start and end time and an open or partially open and previously undefined and unknown number of players and teams. Players can join an open application at any time. Classic examples are tourism games, trade fair games and games with open ticket sales to end customers.

(3) Depending on whether the individual events are offered to players for a fee or free of charge, the Open Application is also differentiated as a Commercial Open Application or a Non-Commercial Open Application.

(3) The customer determines the term of the open application, which is a maximum of two years.

(4) Section 24 (5) shall apply accordingly to the open application.

§ 26 Remuneration and invoicing

(1) The remuneration for the use of the Serious Games Software is based on the individual contract in conjunction with § 6 ("Prices and ancillary costs").

(2) Insofar as the monthly billing is based on the type and scope of use in the previous month, ESPOTO shall provide corresponding log files, so-called "billing logs", in the editorial system for this purpose. In this case, the customer shall check the accuracy and completeness of the billing logs for the respective billing month and shall notify ESPOTO of any errors by the 5th of the following month at the latest. Billing by ESPOTO shall take place at midnight on the day specified in the preceding sentence on the basis of the status of the billing logs. ESPOTO reserves the right to correct incorrect entries made by the customer, but ESPOTO is not obliged to do so.

§ 27 Availability

(1) ESPOTO shall make the Serious Games Software available to the Customer for use with an annual average availability of 95%. This does not include times during which the use of the Serious Games Software is interrupted or impaired due to necessary maintenance work (§ 28) or for reasons for which ESPOTO is not responsible.

(2) ESPOTO's obligations do not include the customer's access to the Internet or the operation of data lines or data networks as parts of the public Internet. ESPOTO therefore assumes no responsibility for the functionality of such data networks or such data lines to its servers, with the exception of the data lines between its servers and the respective transfer point to the public Internet. In particular, ESPOTO accepts no responsibility for power failures or for failures of networks or servers insofar as these affect the public Internet.

(3) ESPOTO is also not responsible for the content data to be transferred by or at the instigation of the customer. ESPOTO is also not responsible for third-party software of the customer connected via interfaces. In particular, malfunctions and failures that are based on the lack of provision or poor quality of the content data or the connected third-party software of the Customer, without ESPOTO being responsible for this, are therefore not taken into account when calculating availability.

§ 28 Maintenance work

ESPOTO's regular maintenance window is between 22:00 and 24:00, CET. ESPOTO will inform the customer three working days in advance of the time and the exact duration of the work as well as the specific scope of the impairment of use. In justified individual cases, in particular to eliminate IT security risks, maintenance work may also be carried out outside the regular maintenance window and with a shorter notice period or without notice. The total duration of the maintenance work may not exceed 6 hours per quarter.

§ 29 Response times for the rectification of defects

The parties agree the following service levels, unless otherwise agreed in individual contracts:

Error class	Response time
Class 1 Defects preventing operation	1 hour
Class 2 Defects that hinder operation	8 hours
Class 3 Other defects	14 days

§ 30 Updates.

(1) ESPOTO will adapt the Serious Games Software to changing information security and data security requirements in accordance with the schedule agreed in the individual contract or, in the absence of such a schedule, within a reasonable period of time, insofar as these changes are significant for the contractual use of the Serious Games Software. This obligation exists within the scope of ESPOTO's operational and economic possibilities and does not apply if the adaptation is associated with unreasonable expense for ESPOTO. Any further development in terms of quality and modernity is only owed to the extent that this is agreed in the individual contract.

(2) In particular, there is no obligation to adapt in accordance with paragraph 1 if there are changes to third-party software provided by the Customer or its interface configuration that affect or could affect the functionality of ESPOTO's Serious Games Software. The Customer shall notify ESPOTO immediately of any such pending changes so that ESPOTO can offer the Customer a solution which, if ESPOTO is commissioned to implement the solution, is to be remunerated separately by the Customer; the parties shall agree on the details in an individual contract.

(3) Subject to a deviating agreement in the individual contract

a) the obligation to provide updates does not include new versions that have an extended range of functions or other extended performance features, in particular upgrades and major releases; ESPOTO may offer the customer the provision of such program versions at a reasonable price, which is based on the scope of the extended functions and performance features compared to the current program version;

b) the provisions on the rights of use for the previous program version shall apply accordingly to the rights of use for a new program version.

§ 31 Support

(1) Insofar as the individual contract includes support, ESPOTO shall answer queries from the customer and its employees regarding the Serious Games Software and/or the game concepts and their functionality.

(2) Support can be limited to a maximum number of hours per month in the individual contract.

(3) Unless otherwise agreed in the individual contract, the following shall apply to support:

a) Support is provided as telephone and e-mail support.

b) Telephone support is available during normal business hours.

c) E-mail support is provided within five working days of receipt of the e-mail.

d) If ESPOTO provides a ticket system for support, the customer must give priority to using this ticket system. For the processing time, lit. c) applies accordingly

(4) Further details on the type and scope of support can be agreed in the individual contract - in particular by agreeing corresponding service levels.

§ 32 Secondary obligations of the customer

(1) For the purpose of ensuring proper use, the customer shall be subject to duties of conduct, non-compliance with which may lead to disadvantages, in particular to termination of the individual contract and claims for damages.

(2) In particular, the customer is obliged not to use the Serious Games Software in an unlawful or immoral manner and to respect the law and the rights of third parties. This includes the following obligations:

a) Prior to any processing of content data, the customer shall ensure that the customer is not processing unauthorized content data.

b) Content data may only contain personal data to the extent that this is absolutely necessary to achieve the relevant processing purpose and anonymization or pseudonymization is excluded or unreasonable. If content data contains personal data, the customer shall comply with all data protection requirements, in particular inform the data subject sufficiently about the data processing, obtain any necessary consent from the data subject and document and store the fulfillment of the data protection requirements in such a way as to provide evidence. The records must be destroyed as soon as they are no longer required. The customer is also the "controller" of the content data within the meaning of the EU General Data Protection Regulation and is therefore responsible for compliance with all other obligations of the controller under the EU General Data Protection Regulation.

c) Prior to any processing of content data, the customer shall check whether the customer is entitled to the necessary rights to the work (e.g. texts, photographs, images, graphics) as well as to brand names, company names, logos and other trademarks and rights. In the case of photographs, it is necessary to further check whether the persons depicted have given the necessary consent; processing may not take place without this consent. The customer grants ESPOTO the rights of use necessary for the proper provision of the services by ESPOTO.

d) The customer may only create and use users with the role of "event manager" if they are each assigned an actually existing person with their actually existing and current e-mail address.

e) Excessive strain on ESPOTO's systems due to improper use must be avoided.

(3) For the purpose of proper billing, the customer shall have the following obligations in particular:

a) The customer does not test events in live mode.

b) If the customer adds a terminal device for merely testing and checking tasks in the live event, this team must be marked as an "Operator" (teams marked as "Operators" are not included in the billing).

c) The customer does not add any unnecessary teams and players to the event who are not ultimately supposed to take part in the event.

(4) The Customer shall compensate ESPOTO for any damage resulting from a breach of an obligation under paragraphs 2 and 3, unless the Customer is not responsible for this. The Customer shall indemnify ESPOTO against all disadvantages incurred by ESPOTO as a result of claims asserted by third parties due to damaging actions by the Customer for which the Customer is responsible. ESPOTO is entitled to demand payment of a reasonable advance on any legal defense and/or legal advice costs.

(5) Since ESPOTO reserves the right to discontinue the service for free versions at any time and without prior notice, the customer shall always save all data required by him separately in order to be able to continue using it even after the service has been discontinued.

§ 33 Blocking, interruption, deletion

(1) ESPOTO may temporarily block the customer's access for good cause and/or interrupt the connection of the resources made available to the customer by ESPOTO to the Internet. An important reason for blocking or interruption exists in particular if

a) the customer breaches one of the obligations specified in Section 32 ("Secondary obligations of the customer") paragraphs 2 and 3,

b) ESPOTO is notified by third parties that the customer is providing or disseminating unauthorized content data, provided that the allegation of an infringement is not obviously incorrect, or

c) the customer is in arrears with the payment of the remuneration or a not insignificant part of the remuneration, insofar as the service is against payment.

In the cases of sentence 2 a) and b), ESPOTO may temporarily block or permanently delete affected content data instead of interrupting it. The obligation to continue to pay the remuneration remains unaffected in the case of a paid service for the customer, unless the customer is not responsible for the important reason for the blocking, interruption or deletion.

(2) The blocking of access, the interruption of the connection as well as the blocking and deletion of content data are only permissible after the unsuccessful expiry of a deadline set for remedial action or after an unsuccessful warning. The setting of a deadline for remedial action and a warning shall be dispensable in the event of a definitive refusal to perform or if other special circumstances exist which justify the action in question after weighing up the interests of both parties.

(3) If the service is provided free of charge, ESPOTO may temporarily block the customer's access at any time and/or interrupt the connection of the resources made available to the customer by ESPOTO to the Internet. ESPOTO may temporarily block or permanently delete affected content data instead of interrupting it. ESPOTO will take the Customer's interests into account in an appropriate manner and will provide the reasons for the measure at the Customer's request. The customer will always store all data required by him separately in order to be able to continue to use it even after the free service has been discontinued.

(4) Further claims and rights of ESPOTO, in particular to suspension of services, termination and damages, remain unaffected.

§ 34 Mosega

(1) ESPOTO offers the Mosega product, a greatly reduced version of the Serious Games Software exclusively for the education sector, which consists of the web app and the editorial system and therefore does not include the Serious Games app to be installed locally with its extended range of functions.

(2) Further details, in particular regarding the scope of functions, remuneration and term, are set out in the individual contract. In all other respects, the provisions of this Section II shall apply accordingly.

III. Creation of a White Label Application

§ 35 Subject matter of the contract

If expressly agreed, ESPOTO shall make adaptations to the Serious Games Software (hereinafter referred to as "white-label application") using the customer's provided materials (e.g. graphics and texts). Further details, in particular regarding the quality and scope of services, are set out in the individual contract.

§ 36 Remuneration

(1) The remuneration for the adjustments is based on the individual contract in conjunction with Section 6 ("Prices and ancillary costs").

(2) The remuneration for the use of the white label application and its billing shall be determined in accordance with the remuneration and billing for the use of the Serious Games Software pursuant to Clause II. § 26.

§ 37 Acceptance

(1) The conformity of the white label application with the contract is confirmed by acceptance.

(2) The acceptance procedure begins after notification of readiness for acceptance by ESPOTO.

(3) The customer shall declare acceptance if there are no defects preventing acceptance. Acceptance cannot be refused due to minor defects. Any remaining defects, in particular Class 3 defects that do not prevent acceptance (Section I. § 16), shall be recorded in the declaration of acceptance and remedied by ESPOTO within the scope of ESPOTO's liability for material defects and defects of title.

(4) Acceptance shall take place in writing. An acceptance report shall be drawn up.

(5) Acceptance shall be deemed to have taken place if the customer

a) has put the white label application into use or passed it on to third parties, even if this violates the license conditions, provided that the use is made without notification of defects preventing acceptance and not merely for test purposes,

b) has not notified ESPOTO of any defects preventing acceptance within ten days of notification of readiness for acceptance (paragraph 2), or

c) has not refused acceptance after completion of the object of performance within a reasonable period set by ESPOTO, expressly stating at least one defect of defect class 1 or 2.

(6) At ESPOTO's request, the Customer must accept self-contained parts of the service separately. The above paragraphs shall apply accordingly to partial acceptances, but the period under paragraph 5 b) shall be reduced to one week. If the Customer is in default with a partial acceptance, ESPOTO is entitled to refuse further services, without prejudice to any other rights arising from the default.

§ 38 Scope of the customer's rights of use

Insofar as ESPOTO has made adaptations to the white label application on behalf of the customer, the rights of use to the performance results achieved are subject to the same conditions as the rights of use to the Serious Games Software, unless otherwise agreed.

§ 39 Transfer of use of the White Label Application

The transfer of use of the white label application is governed by the provisions of Section II. ("Serious Games Software").

IV. Other services

§ 40 Subject matter of the contract

If ESPOTO provides contractual programming, consulting and/or support services for the customer, including the implementation of workshops, instruction and training, the further details, in particular the scope of services, are set out in the individual contract.

§ 41 Contractual services

(1) ESPOTO regularly provides contractual services in particular if ESPOTO owes pure services according to the contractual agreements, as is the case, for example, when working on larger projects under the management of the customer. ESPOTO does not owe the production of a specific work or otherwise the achievement of a specific success. The customer, in particular his project manager, bears the overall responsibility for the professional, timely and budgetary realization of the project.

(2) If performance results arise in the course of the provision of contractual services, the specific content of the right of use shall result from the individual contract, or alternatively from the purpose of the service contract. The acquisition of the right of use is subject to the condition precedent of full payment of the remuneration owed.

(3) ESPOTO is not obliged to examine the results of the service for conflicting industrial property rights or other intellectual property of third parties.

(4) Documents, proposals, test programs and other items of ESPOTO in connection with the contractual services which are made available to the Customer before or after conclusion of the contract are deemed to be intellectual property and business and trade secrets of ESPOTO in the relationship between the parties. Unless otherwise stated in the above, they may not be used in any way whatsoever without the written permission of ESPOTO and must be kept secret in accordance with Section I. § 21 ("Confidentiality and data protection"). In addition, Section I. § 14 ("Property rights") paragraphs 3 and 4 shall apply accordingly.

(5) Subject to an express agreement to the contrary in the individual contract, all deliveries and services provided by ESPOTO over and above the purely contractual service are excluded. In particular, the Customer shall provide all materials in connection with the service (e.g. texts, graphics, images, videos, third-party programs including free licenses) in accordance with Section I. § 11 ("Provisions by the Customer").

V. Other provisions

§ 42 Exclusions from benefits

(1) The scope of performance of an individual contract concluded on the basis of these GTC shall include in particular

a) all services provided at the customer's request outside normal business hours, unless the contractually agreed service is to be provided outside normal business hours;

b) all services performed at the customer's request at a location other than ESPOTO's registered office;

c) work and services that become necessary due to improper use by the customer, regardless of whether these were carried out by the customer, his vicarious agents or other persons within the customer's sphere of influence;

d) conducting workshops, briefings and training courses;

e) Work and services that become necessary due to force majeure or other circumstances for which ESPOTO is not responsible;

f) Work and services resulting from changed or new individual usage requirements of the customer;

g) work and services on hardware and software not covered by the contract;

h) Work and services that are triggered by use of ESPOTO's IT systems by the Customer or its vicarious agents that goes beyond the usual extent, e.g. frequent mass dispatch of documents, permanent exports in full reconciliation and the effects of such use, such as in particular increased data traffic, increased use of storage space and computing power on the servers, increased utilization of the networks and data lines as well as additional work and personnel expenditure by ESPOTO without special express provision are not covered.

(2) The services specified in paragraph 1 shall only be provided on the basis of a separate agreement in the individual contract and only against separate remuneration. Separate remuneration is only not owed if this is expressly regulated in the individual contract.

§ 43 Reference naming

ESPOTO is entitled to list the customer's company and logo as well as a brief description of the project in reference lists and to publish and disseminate these on the Internet, in print media, at presentations or otherwise for factual information. Any further use is not permitted unless otherwise agreed.

§ 44 Notifications and declarations

(1) Subject to a deviating provision in these GTC, the text form pursuant to Section 126b BGB (e.g. email) is sufficient, but also required, for the validity of declarations and notifications. On the other hand, declarations for which these GTC or the law expressly prescribe this must be made in writing (Section 126 BGB), whereby transmission by telecommunication is sufficient to meet the deadline if the recipient receives the original written declaration as soon as possible.

(2) Subject to proof to the contrary, an e-mail shall be deemed to originate from the other party if the e-mail contains the name and e-mail address of the sender as well as a reproduction of the sender's name at the end of the message.

§ 45 Contact persons

(1) The parties shall each name a contact person and a deputy in the individual contract who can make decisions or bring about decisions at short notice and provide information within the scope of the power of representation to which they are entitled under the individual contract. Without further specification in the individual contract, the power of representation of the contact persons and their respective deputies shall be limited in case of doubt to making decisions to concretize or specify the services agreed in the individual contract, to commission changes and extensions to the agreed services, to reschedule non-binding or bindingly agreed dates and to provide binding information.

(2) One party shall notify the other party immediately of any changes to the named contact persons and/or their deputies. Until such notification is received, the previously named contact persons and/or their deputies shall be deemed authorized to make and receive declarations within the scope of their previous power of representation.

§ 46 Final provisions

(1) These GTC and all individual contracts concluded under their inclusion are subject exclusively to the law of the Federal Republic of Germany. Mandatory provisions for the protection of the consumer, which apply in the country in which the consumer has his habitual residence, remain unaffected. The UN Sales Convention (CISG) is excluded; mandatory provisions of the UN Sales Convention (in particular Art. 12, Art. 28 and Art. 89 ff. CISG) remain unaffected.

(2) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if the Customer has no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes in connection with the individual contracts concluded subject to these GTC shall be the registered office of ESPOTO. Any other statutory place of jurisdiction shall also apply to legal actions brought by ESPOTO against the customer. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by the above provisions.

(3) The jurisdiction agreements pursuant to paragraph 2 shall be governed exclusively by the law of the Federal Republic of Germany.

(4) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance shall be ESPOTO's registered office, unless otherwise stipulated in the above provisions or the individual contract.

(5)A lawsuit may only be filed after the parties have attempted to reach an out-of-court settlement. The parties should agree on a neutral third party as mediator. The limitation period for all claims arising from the matter in dispute shall be suspended from the initiation of the settlement attempt by one of the parties until the end of the mediation. § Section 203 BGB applies accordingly. Court summary proceedings or the filing of an action to interrupt a statutory limitation period that cannot be extended by party agreement shall remain permissible at any time.

(6) Insofar as the individual contract concluded with the customer on the basis of these GTC contains loopholes, the legally effective provisions that the parties would have agreed in accordance with the economic objectives of the individual contract if they had been aware of the loophole shall be deemed to have been agreed to fill these loopholes.