Preamble

xwave group DTSCHL GmbH (hereinafter referred to as “XWAVE”) operates software it developed called Starsellersworld, a fully web-based trading system with automated logistics services for online trading on platforms supported by XWAVE.

XWAVE customers are offered a specialized software application for temporary use via a telecommunications connection and the possibility to store application data for a fee.

XWAVE is a legally and economically independent company from the supported trading platforms. XWAVE is not an agent of these trading platforms.

§ 1. Scope

(1) The following General Terms and Conditions (hereinafter referred to as “GTC”) govern the business relationship for the Starsellersworld system (hereinafter also referred to as “SSW” even when in the plural) between XWave Group Deutschland GmbH, Thurn-und-Taxis-Platz 6, 60313 Frankfurt am Main (hereinafter referred to as “XWAVE”) and its customers (hereinafter referred to as “CUSTOMER”). They also apply to all future business relationships, even if they are not explicitly agreed upon again. CUSTOMERS can only be businesses/entrepreneurs within the meaning of § 14 BGB (German Civil Code).

(2) The GTC apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the CUSTOMER or third parties shall only become part of the contract if XWAVE has expressly agreed to their validity in writing. This requirement for consent applies in all cases, for example, even if XWAVE performs services unconditionally with knowledge of the CUSTOMER’s General Terms and Conditions. Even if XWAVE refers to a document that contains or refers to the CUSTOMER’s General Terms and Conditions, this does not imply consent to their applicability.

(3) Individual agreements made with the CUSTOMER (including ancillary agreements, supplements, and amendments) in individual cases shall take precedence over these GTC in any case. The content of such agreements shall be determined by a written contract or written confirmation by XWAVE.

(4) Legal declarations and notices from the CUSTOMER to be made to XWAVE after the conclusion of the contract (e.g., setting deadlines, notification of defects, termination) must be made in writing to be effective.

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

§ 2. Subject of the Contract

The subject of this contract is the provision of the SSW software application for the use of its functionalities, the technical enabling of the use of the SSW software, and the granting or mediation of usage rights to the SSW software as well as the provision of storage space for the application data generated by the CUSTOMER using the SSW software and/or required for the use of the SSW software (hereinafter referred to as “APPLICATION DATA”) in the agreed scope by XWAVE to the CUSTOMER in exchange for payment of the agreed fee.

§ 3. Contract Conclusion / Contract Duration / Free Trial Period

(1) For a contract between the CUSTOMER and XWAVE to be concluded, the CUSTOMER must first register with XWAVE on the website www.starsellersworld.com.

(2) The CUSTOMER’s order/booking of a plan and/or optional additional features constitutes a binding contract offer. Upon acceptance of this contract offer by XWAVE, a fee-based contract for the selected plan by the CUSTOMER, for the duration of the initial contract period selected by them, as well as for any optionally bookable additional features, comes into effect. The terms of the offered plans may vary. If the CUSTOMER does not terminate the contract according to § 19 of these GTC before the end of the initial contract period, the contract is automatically extended by this period.

(3) Acceptance of the CUSTOMER’s order/booking can be declared either by email (e.g., by order confirmation) or by activation/enabling of the main account within five days by XWAVE, whichever occurs first. The main account activation occurs after the CUSTOMER has authenticated themselves by signing and returning the order confirmation or by verifying the payment method via credit card (validation), where a symbolic amount of €0.10 is charged to the credit card. This symbolic amount will be credited against the first invoice if validation is successful. The terms for credit card payment according to § 7 paragraph (5) of these GTC apply.

(4) If offered by XWAVE, the CUSTOMER has the option to test the SSW software for free (trial period) for an agreed period after the initial registration on the XWAVE website. The details regarding the duration of the trial period are outlined in the description of the respective plan on the XWAVE website under „Info Test Phase.“ The free trial period begins with the activation/enabling of the main account. Within this trial period, the CUSTOMER may cancel the contract in writing to XWAVE at any time. In such a case, any amount paid during the validation of the credit card will be refunded, and the customer’s account access will be deleted. If no cancellation is made within the trial period, the contract automatically transitions into a fee-based contract. There is no legal claim to a free trial period.

(5) The CUSTOMER can switch from one plan to another at any time. In the case of a plan change, no additional trial period is granted in the new plan. With each plan change, the contract term begins anew without crediting the remaining term of the previously selected plan. The term and prices of the newly selected plan apply from the day XWAVE confirms or implements the plan change. This is also visible at any time in the customer’s account.

(6) Optional additional features bookable by the CUSTOMER at any time do not affect the contract duration.

(7) The end of the contract term can be viewed at any time in the customer’s account.

§ 4. Provision of the SSW Software / Storage Space

(1) XWAVE makes the SSW software available in the latest version for use by the CUSTOMER on one or more servers operated by XWAVE (hereinafter referred to as “SERVER”) from the contractually agreed time, according to the following provisions.

(2) XWAVE ensures that the provided SSW software:

– is suitable for the purposes arising from the CUSTOMER’s booked service scope,
– is free from defects, particularly free from viruses and similar damages that would nullify the suitability of the SSW software for contractual use.

(3) XWAVE provides the CUSTOMER with the necessary access data. All usernames and/or passwords must be immediately changed by the CUSTOMER to names and/or passwords known only to them. Further security measures are governed by § 8 of these GTC.

(4) XWAVE ensures that the provided SSW software is always up to date with the latest technology.

(5) XWAVE provides storage space on the SERVER for the APPLICATION DATA from the contractually agreed time of the operational availability.

(6) SSW and the APPLICATION DATA are regularly backed up on the SERVER, at least daily. The CUSTOMER is responsible for complying with commercial and tax-related retention periods.

(7) The transfer point for using SSW and the APPLICATION DATA is the router exit of XWAVE’s data center.

(8) Agreements on system requirements on the CUSTOMER’s side are governed by § 9 of these GTC and are also available on XWAVE’s websites. For changes to XWAVE’s technical system, § 21 of these GTC applies accordingly. XWAVE is not responsible for the condition of the required hardware and software on the CUSTOMER’s side or the telecommunications connection between the CUSTOMER and XWAVE up to the transfer point.

§ 5. Usage Rights and Use of the SSW Software

(1) Usage Rights to the SSW Software

a. The CUSTOMER is entitled to use the SSW software with the respective contractually agreed functionalities during the contract term according to the following provisions.

b. The CUSTOMER is granted a simple, non-transferable, and non-sublicensable right of use for the duration of the contract.

c. The CUSTOMER may only use the SSW software within the scope of performing this contract for their own business activities.

d. The CUSTOMER uses the SSW software by logging into their customer account as part of performing this contract.

e. The CUSTOMER is not entitled to use the SSW software with modified versions. This does not apply to changes necessary to correct errors if XWAVE is in default with correcting the error, refuses to rectify the error, or is unable to correct the error due to insolvency proceedings.

f. If XWAVE makes new versions, updates, upgrades, or other new deliveries regarding the SSW software during the contract term, the above provisions also apply to these.

(2) Obligations of the Customer for Secure Use

a. The CUSTOMER must take the necessary precautions to prevent unauthorized use of the SSW software.

b. The CUSTOMER is responsible for ensuring that the SSW software is not used for racist, discriminatory, pornographic, youth-endangering, politically extreme, or otherwise illegal purposes or in violation of official regulations or requirements, nor that corresponding data, particularly APPLICATION DATA, are created and/or stored on the SERVER.

c. The CUSTOMER must not offer goods/products on the supported trading platforms that infringe third-party rights, particularly trademark or copyright rights, or that violate legal regulations, public order, or good morals.

(3) Violation of Provisions Under Paragraphs (1) and (2) by the Customer

a. If the CUSTOMER violates the provisions in paragraphs (1) or (2) for reasons attributable to them, XWAVE may, after prior written notification to the CUSTOMER, block the CUSTOMER’s access to the SSW software or the APPLICATION DATA if the violation can be demonstrably remedied in this way.

b. If the CUSTOMER unlaw

fully violates paragraph (2) letter b., XWAVE is entitled to delete the affected data or APPLICATION DATA. In the event of an unlawful violation by users, the CUSTOMER must immediately provide XWAVE with all information necessary to assert claims against the user upon request, particularly the user’s name and address.

If the CUSTOMER continues or repeatedly violates the provisions in paragraphs (1) or (2) despite a corresponding written warning from XWAVE and is responsible for this, XWAVE may terminate the contract without notice.

c. For each case in which the CUSTOMER enables the use of the SSW software by third parties in violation of the contract, the CUSTOMER must pay a contractual penalty immediately due in the amount of the monthly basic fee according to § 6 paragraph (2) of these GTC. The assertion of damages remains reserved; in this case, the contractual penalty will be offset against the claim for damages.

d. If the CUSTOMER is responsible for the breach of duty, XWAVE may claim damages according to § 18 of these GTC.

(4) Customer Rights to Resulting Databases and Database Works

If and to the extent that a database or databases, a database work, or database works are created during the contract term, particularly through the compilation of APPLICATION DATA, by activities permitted under this contract on XWAVE’s SERVER, all rights thereto shall belong to the CUSTOMER. The CUSTOMER remains the owner of the databases or database works even after the contract ends.

§ 6. Prices / Fees / Price Change

(1) The generally valid price lists of XWAVE at the time of commissioning apply, which the CUSTOMER can view at any time in their customer account. All prices listed in this price list are exclusive of statutory VAT.

(2) The fee for the services to be provided by XWAVE for making the SSW software available for use by the CUSTOMER and for providing storage space, including data backup, is composed, depending on the selected plan, of a monthly basic fee and/or usage-dependent fees according to the generally valid price lists of XWAVE at the time of commissioning. If a plan does not include a monthly basic fee, the fee is usage-dependent.

(3) The monthly basic fee is due regardless of whether and to what extent the CUSTOMER uses the SSW software. It is due in advance.

(4) The monthly basic fee and any additional bookable options are charged for each started calendar month from the time of provision. They are due in advance. If the CUSTOMER has justifiably terminated the contract extraordinarily, the fee will be refunded on a pro-rata basis.

(5) The usage-dependent fees for using the SSW software and for storing, managing, and providing the APPLICATION DATA are agreed upon based on the generally valid price lists of XWAVE at the time of commissioning. They are billed monthly in arrears. The usage-dependent fee and any separate fees under paragraph (9) are due immediately upon receipt of the invoice.

(6) For XWAVE to properly calculate the usage-dependent fees, the CUSTOMER is obliged to cooperate by providing information. In particular, the CUSTOMER must properly and fully disclose the managed sales figures for usage-dependent fees. The CUSTOMER generally complies with their duty to provide information by enabling XWAVE, according to § 8 of these GTC, to technically access the CUSTOMER’s sales account on the respective trading platform (e.g., Amazon, eBay, etc.) in a suitable manner to read the sales managed by XWAVE for the CUSTOMER during the billing period.

(7) Managed sales are all sales managed by the CUSTOMER through the SSW software, without considering subsequent cancellations, refunds, and/or returns.

(8) XWAVE is entitled, with six weeks’ notice by email, but no earlier than twelve months after the conclusion of the contract, to increase prices appropriately, effective from the beginning of the following month. A price increase is permissible to the extent that it is caused by a statutory increase in VAT or is mandatory due to regulatory requirements by the Federal Network Agency. Price increases do not apply to periods for which the CUSTOMER has already made payments.

The CUSTOMER has the right to terminate the contract in writing within two weeks of receiving the price increase notice. XWAVE will inform the CUSTOMER of this right of termination in each price increase notice. If the CUSTOMER does not terminate the contract within this two-week period, the price change becomes part of the contract.

(9) Other services agreed to be subject to fees will be provided by XWAVE based on the effort (e.g., time, quantity, etc.) according to the generally valid price lists of XWAVE at the time of commissioning.

§ 7. Payment Terms

(1) The monthly basic fee and monthly billable options are due in advance. Fees that are billed based on usage are due immediately upon receipt of the invoice. The invoice is made available to the CUSTOMER in electronic form in their customer account for retrieval and printing. The CUSTOMER will be notified separately by email when the invoice is posted.

(2) The invoice amount is subject to the applicable statutory default interest rate during the delay. XWAVE reserves the right to claim further damages caused by the delay. For merchants, XWAVE’s right to the commercial maturity interest rate (§ 353 HGB) remains unaffected.

(3) A payment is considered made only when XWAVE can dispose of the amount (date of receipt of payment by XWAVE). The CUSTOMER can grant a SEPA direct debit mandate or pay by credit card.

(4) **SEPA Direct Debit Mandate**

CUSTOMERS with a registered office in Germany and a bank account in Germany can authorize XWAVE with a SEPA direct debit mandate (SEPA Core Direct Debit Mandate). In this case, the direct debit will be initiated no earlier than five days after the invoice is issued. The pre-notification period for the direct debit is reduced to five days and is deemed agreed upon.

(5) CUSTOMERS also have the option of paying by credit card. In this case, the CUSTOMER must enter all relevant credit card details when booking the plan. The credit card account will be charged immediately after invoicing. In the case of payment verification (validation of the payment method) as part of the main account activation/enabling according to § 3 paragraph (3) of these GTC, the credit card account will be charged upon completion of the payment process by the CUSTOMER.

(6) If the CUSTOMER is in default with their payment, the CUSTOMER’s navigation in the customer account will be restricted, except for the possibility of depositing the credit card with which the outstanding invoice(s) will be immediately settled. Any services will remain at the status of the last update. If the CUSTOMER fails to fulfill their payment obligation despite a reminder, the services will be deactivated, and the offer-relevant individual data (e.g., stored price optimizations, etc.) will remain at the status of the last update.

(7) XWAVE reserves the right to offer some CUSTOMERS the payment option “on account,” meaning payment only after receipt of the invoice. If this payment option is not available to the CUSTOMER or has not been agreed upon in writing between XWAVE and the CUSTOMER, XWAVE does not offer this payment option to the respective CUSTOMER (possibly not yet). In this case, the CUSTOMER must choose one of the two other available payment methods (SEPA direct debit or credit card). When paying “on account,” the invoice amount is due for payment within four weeks of the invoice date. The CUSTOMER has no entitlement to this payment method.

§ 8. Obligations and Duties of the CUSTOMER

(1) The CUSTOMER is responsible for independently operating and controlling the software provided by XWAVE and entering any required data. XWAVE is not responsible for any incorrect operation caused by the CUSTOMER.

(2) The CUSTOMER shall fulfill all agreed obligations and duties necessary for the execution of the contract. In particular, the CUSTOMER must:

1. Keep the usage and access rights assigned to them and the users, as well as agreed identification and authentication security measures, confidential, protect them from third-party access, and not pass them on to unauthorized users. These data must be protected by appropriate and standard measures. The CUSTOMER must immediately notify XWAVE if there is a suspicion that the access data and/or passwords may have become known to unauthorized persons;

2. Create the agreed access requirements, which are available on the XWAVE website at www.starsellersworld.com, such as login data;

3. Ensure and allow XWAVE access to the software (SSW) for the duration of the contract for the CUSTOMER’s account on the respective trading platform (e.g., at AMAZON, eBay, etc.) to provide the services and calculate the fees;

4. Keep the access data stored in the SSW software for the respective trading platform accounts valid and up to date for the duration of the contract and ensure that the necessary interfaces of the trading platforms supported by XWAVE can be used;

5. Comply with the restrictions/obligations regarding usage rights under § 5 of these GTC, in particular:

a. Not to retrieve or allow the unauthorized retrieval of information or data, or interfere or allow interference with programs operated by XWAVE, or unlawfully penetrate XWAVE’s data networks or promote such penetration;

b. Not to use the exchange of electronic information/data made possible by the contractual relationship and/or the use of the SSW software for unsolicited sending to third parties for advertising purposes;

c. Indemnify XWAVE against claims by third parties based on unlawful use of the SSW software by them or arising from data protection, copyright, or other legal disputes caused by the CUSTOMER and associated with the use of the SSW software;

d. Require the authorized users to comply with the applicable provisions of this contract;

6. Ensure that they observe all third-party rights to the material used by them (e.g., when transmitting third-party data to XWAVE’s SERVER);

7

. Obtain the necessary consent of the respective data subject according to § 14 paragraph (2) of these GTC if they collect, process, or use personal data using the SSW software, and no legal basis permits this;

8. Check data and information for viruses before sending them to XWAVE and use state-of-the-art virus protection programs;

9. Immediately report defects in contractual services, particularly defects in the services under §§ 4, 9, and 11 of these GTC or the SSW software, to XWAVE with a detailed description of the defect and its effects, if possible. If XWAVE was unable to remedy the defect due to the omission or delay in notification, the CUSTOMER is not entitled to reduce the fee under § 6 paragraph (2) of these GTC, claim compensation for the damage caused by the defect, or terminate the contract without notice due to the defect. The CUSTOMER must prove that they were not responsible for the omission of the notification. The CUSTOMER is also obliged to cooperate in remedying the defect to the best of their ability;

10. Pay the agreed fee according to § 6 of these GTC in due time;

11. Regularly and appropriately back up any data they transmit to XWAVE to generate APPLICATION DATA using the SSW software and create their own backups to enable reconstruction in case of data and information loss;

12. Regularly back up the APPLICATION DATA stored on the SERVER by downloading it if and to the extent that this is technically feasible by mutual agreement; XWAVE’s obligation to back up data according to § 4 paragraph (6) of these GTC remains unaffected.

§ 9. Technical Availability of the SSW Software and Dependence on Third-Party Technology

(1) XWAVE is responsible for the agreed availability of the SSW software and the APPLICATION DATA at the transfer point. Availability means the technical usability of the SSW software and the APPLICATION DATA at the transfer point for use by the CUSTOMER.

(2) All details regarding availability, particularly the technical parameters and procedures for measuring and determining availability, are available on XWAVE’s website. It specifically defines:

– System usage time, core usage time, and peripheral usage time,
– The time during which XWAVE performs regular or planned maintenance or repairs (maintenance window),
– The reference period within which availability is calculated,
– The degree of availability in % within core usage time and peripheral usage time,
– The maximum permissible uninterrupted downtime per agreed time unit for core usage time and peripheral usage time,

(3) The parties also agree on response and recovery times that apply in the event of unavailability and/or the presence of defects in the SSW software or the APPLICATION DATA, which can also be viewed on XWAVE’s website.

(4) During planned unavailability periods, XWAVE is entitled to perform maintenance, care, backups, or other work on the SSW software and/or SERVER. Planned unavailability periods must be agreed upon with the CUSTOMER. For important reasons, the CUSTOMER will not unreasonably withhold their consent. The CUSTOMER already agrees that a planned unavailability period will exist throughout the contract term. If and to the extent that the CUSTOMER can use the SSW software during planned unavailability periods, there is no legal claim to this. If performance reductions or interruptions occur while using the SSW software during planned unavailability periods, the CUSTOMER has no claim for defect liability or compensation.

(5) The CUSTOMER is aware that the SSW software relies on the technologies of the trading platforms supported by XWAVE. Therefore, the CUSTOMER agrees to use the SSW software exclusively for the purpose of optimizing sales in compliance with these GTC and the general terms of use of the trading platforms supported by XWAVE.

(6) If the trading platforms supported by XWAVE make changes independent of XWAVE’s control, the use of the SSW software may be technically restricted or even unlawful. If such an event occurs, the CUSTOMER cannot make any claims against XWAVE based on this event, provided that XWAVE immediately informs the CUSTOMER and explains the consequences. If the CUSTOMER has made payments to XWAVE for periods after the occurrence of such an event, XWAVE is obliged to refund them.

(7) XWAVE is not liable for the integrity, completeness, precision, accuracy, and timeliness of the information, data, and/or databases provided by the trading platforms supported by the SSW software.

(8) XWAVE’s liability is excluded to the extent that the CUSTOMER does not use the SSW software according to the documentation available on XWAVE’s website and in compliance with the technical requirements, or the use of the SSW software is hindered or made impossible due to hardware or software errors within the CUSTOMER’s control or due to an internet connection within the CUSTOMER’s control, over which XWAVE has no influence.

(9) XWAVE is not liable for the suitability of the SSW software for the CUSTOMER’s intended needs. Consequently, XWAVE does not assume any liability for a specific sales success intended by the CUSTOMER and does not guarantee this.

§ 10. Non-Performance of Principal Obligations

(1) If XWAVE does not fully meet the obligations agreed upon in §§ 4 and 9 of these GTC, the following provisions apply.

(2) If XWAVE is in default with the initial operational provision of the SSW software, liability is governed by § 18 of these GTC. The CUSTOMER is entitled to withdraw from the contract if XWAVE fails to meet a two-week grace period set by the CUSTOMER, i.e., if XWAVE does not provide the full agreed functionality of the SSW software within the grace period.

(3) If XWAVE fails to meet the agreed obligations in whole or in part after the initial operational provision of the SSW software and/or the APPLICATION DATA, the monthly basic fee under § 6 paragraph (2) of these GTC shall be reduced proportionately for the period in which the SSW software and/or the APPLICATION DATA were not available to the CUSTOMER in the agreed scope. Ongoing usage fees under § 6 paragraphs (5) and (6) of these GTC are only due for business transactions that were actually conducted using the SSW software despite the restriction or discontinuation of services. If XWAVE is responsible for this non-performance, the CUSTOMER may claim damages. In this case, XWAVE is entitled to prove that the CUSTOMER has suffered less damage than claimed.

(4) If the use of the SSW software cannot be restored within a maximum period of two weeks after XWAVE becomes aware of the defect, the CUSTOMER may terminate the contract without notice, regardless of the reason for the non-performance, unless force majeure is the sole cause.

(5) XWAVE must prove that it is not responsible for the delay in provision or the performance failure. If the CUSTOMER has not notified XWAVE of the performance failure, the CUSTOMER must prove that XWAVE was otherwise aware of it.

§ 11. Other Services by XWAVE

(1) XWAVE provides the CUSTOMER with an electronic printable documentation in the form of a FAQ database in German with the respective functionalities of the SSW software on the website www.starsellersworld.com under the “FAQ” section. The CUSTOMER is entitled to store, print, and reproduce the provided documentation in an appropriate number for the purposes of this contract while maintaining any existing copyright notices. Otherwise, the usage restrictions agreed for the SSW software under § 5 of these GTC apply accordingly to the documentation.

(2) Additional services by XWAVE can be optionally booked at any time via the provided account. Such additional services are provided against reimbursement of the proven effort according to the generally valid price list of XWAVE at the time of commissioning.

(3) If XWAVE provides services for a fee according to the generally valid price list at the time, which the CUSTOMER has initiated by bypassing the Starsellersworld system but has not previously booked for a fee, the CUSTOMER owes XWAVE the effort for these services according to the generally valid price list.

(4) Other services by XWAVE can be agreed upon in writing at any time, especially training on the SSW software. Such additional services are provided against reimbursement of the proven effort according to the generally valid price list of XWAVE at the time of commissioning.

§ 12. Liability for Third-Party Rights

(1) XWAVE will promptly inform the CUSTOMER of third-party rights and any resulting impairment of the agreed services and will provide the CUSTOMER with full access to the APPLICATION DATA in an appropriate manner.

(2) The CUSTOMER is not obliged to pay compensation if third-party rights impair their use of the SSW software.

(3) A refusal to use the SSW software and/or the APPLICATION DATA for legal reasons under paragraph (1) is considered unavailability. If XWAVE no longer has the rights necessary to properly fulfill the contract, especially the required usage rights to the SSW software or its documentation, and the SSW software is unavailable for longer than agreed in § 10 of these GTC, § 10 paragraphs (3) and (5) of these GTC apply accordingly.

(4) XWAVE will indemnify the CUSTOMER upon first request from all claims by third parties arising from the fact that XWAVE cannot provide the agreed services without impairment due to the rights of these third parties. The parties will promptly notify each other in writing if claims are asserted against them.

(5) The CUSTOMER may also claim damages under § 18 of these GTC.

(6) XWAVE is not liable for any infringement of third-party rights by the CUSTOMER if and to the extent that such infringement results from exceeding the usage rights granted under this contract. In this case, the CUSTOMER must indemnify XWAVE against all claims by third parties upon first request.

§ 13. XWAVE Intellectual Property Rights

(1) The SSW software, including all software components, especially the SSW database, as well as other program and data areas provided by the CUSTOMER for contractual use, are protected by copyright.

(2) It is prohibited to copy, modify, otherwise reproduce, rent, publish, redesign, or technically transfer the software, parts of the software, or components of the software, as well as the database or data sets of the software, to another data carrier or otherwise use them outside the provisions of these GTC.

(3) Advertising banners, images, texts, and logos, as well as all related services and products of XWAVE, are also subject to copyright or trademark law and may only be used outside of this contractual relationship with the express written consent of XWAVE.

(4) Violations will be prosecuted and sanctioned by XWAVE to the full extent of the law.

(5) XWAVE is entitled to encode all data provided for retrieval to prevent unauthorized use. XWAVE is entitled to further develop the encoding technology according to the state of the art and within the framework of legal permissibility.

§ 14. Data Protection / Data Security / Cookies

(1) The parties will comply with the applicable data protection regulations, particularly those in force in Germany, and will commit their employees involved in the execution of the contract to data secrecy according to § 5 BDSG, provided they are not already generally obliged to do so.

(2) If the CUSTOMER collects, processes, or uses personal data, they are responsible for ensuring that they are authorized to do so under the applicable data protection regulations and will indemnify XWAVE against claims by third parties in the event of a violation.

(3) XWAVE will only collect and use customer-related data to the extent necessary to perform this contract. The CUSTOMER agrees to the collection and use of such data to this extent.

(4) The obligations under the preceding paragraphs (1) to (3) remain in effect as long as APPLICATION DATA is within XWAVE’s sphere of influence, even after the contract ends.

(5) XWAVE is obliged to provide the CUSTOMER with information about their stored data at any time upon request and to correct or delete it if necessary. If the requested deletion of CUSTOMER data makes the use of the SSW software impossible, XWAVE is not liable for this.

(6) The use of cookies is necessary for the SSW software to function fully and without interruption, and these must be enabled in the CUSTOMER’s web browser. A cookie stores information related to the CUSTOMER’s use of the accessible pages (e.g., pages accessed, date and time of access, etc.). These accessed information can be read by the SSW software during future visits by the CUSTOMER. The CUSTOMER can disable the use or acceptance of cookies at any time by changing the settings in their web browser. If the CUSTOMER disables the use of cookies, some functions of the SSW software may not work properly. In this case, XWAVE is not liable for any disruptions.

§ 15. Confidentiality

(1) The contracting parties shall keep confidential all information they become aware of within the scope of this contractual relationship and shall not use it for any purpose – regardless of the purpose – with third parties without prior written consent from the respective other party. Confidential information includes information explicitly designated as confidential by the party providing the information and such information whose confidentiality is clearly apparent from the circumstances of disclosure. APPLICATION DATA is particularly subject to confidentiality by XWAVE, if known.

(2) The obligations under paragraph (1) do not apply to information or parts thereof for which the receiving party can prove that:

– they were known or generally accessible to them before the receipt date;
– they were known or generally accessible to the public before the receipt date;
– they became known or generally accessible to the public after the receipt date without the receiving party being responsible for this.

(3) Public statements by the parties about cooperation will only be made by mutual agreement.

(4) The obligations under paragraph (1) remain in effect indefinitely beyond the contract’s termination, unless an exception under paragraph (2) is proven.

§ 16. Sanctions for Violating Obligations Under §§ 14, 15

If a party violates an obligation under the preceding provisions of §§ 14, 15 of these GTC or an agreement on order data processing for reasons for which they are responsible, a contractual penalty in an appropriate amount is due for each violation. The injured party may also claim damages according to the provisions in § 18 of these GTC, with the contractual penalty being offset.

§ 17. Insolvency or Imminent Insolvency of a Party

A party must immediately notify the other party if:

– it has applied for the opening of insolvency proceedings or intends to do so within the next 14 calendar days,
– the opening of insolvency proceedings has been applied for by third parties,
– it must suspend payments due to payment difficulties,
– measures have been taken to satisfy third-party creditor claims due to payment difficulties, or
– it has agreed to measures to satisfy third-party creditor claims in connection with payment difficulties.

§ 18. Liability, Liability Limits, and Contractual Penalties

(1) The parties are liable to each other for all damages caused by them or their legal representatives or vicarious agents in cases of intent or gross negligence.

(2) Otherwise, a party is only liable to the extent that it has breached an essential contractual obligation (cardinal obligation). In these cases, liability is limited to the foreseeable, typically occurring damage. The no-fault liability of XWAVE for damages under § 536a BGB for defects present at the time of contract conclusion is excluded; paragraphs (1) and (2) remain unaffected.

(3) XWAVE is not liable for indirect damages, particularly for lost profits or missed or unrealized savings, and/or consequential damages.

(4) A party is only obliged to pay a contractual penalty if this contract explicitly provides for it. A contractual penalty does not need to be reserved. Offsetting with and against it is permissible.

(5) Liability under the Product Liability Act remains unaffected (§§ 1, 14 of the Product Liability Act).

(6) All of the above exclusions and/or limitations of liability do not apply to damages to life, body, and health, as well as in cases of mandatory statutory regulations.

§ 19. Termination / End of Contract

(1) If the contract is not canceled in writing by the CUSTOMER during the trial period according to § 3 paragraph (4) of these GTC, the contract may be terminated in writing by either party with one month’s notice to the end of the contract term.

(2) Extraordinary termination for good cause remains unaffected. Good cause for XWAVE exists if the CUSTOMER violates essential provisions of this contract despite a warning or if the CUSTOMER is in arrears with payment of the fee or a substantial part of the fee for two consecutive months or with payment of the fee in the amount of two months‘ fees over a period of more than two months.

In the event of justified termination without notice by XWAVE, the CUSTOMER is still obliged to pay the contractually agreed fee until the end of the contract term, along with the usage fees incurred.

(3) Upon termination of the contract, XWAVE will dissolve the CUSTOMER’s account and delete the CUSTOMER’s access data. Any offer-relevant individual data (e.g., prices or price specifications, etc.) stored on one or more trading platforms for the CUSTOMER will remain at the status of the last update.

(4) Upon the CUSTOMER’s request, XWAVE is obliged to cooperate with a third party designated by the CUSTOMER to wind up this contract within four weeks after the contract has been legally terminated and all outstanding claims from the contractual relationship have been settled. This cooperation is limited to:

– Transmitting the APPLICATION DATA stored by the CUSTOMER in the format available at XWAVE,
– Transmitting other data relating to the CUSTOMER, provided that it is not trade secrets, which XWAVE must demonstrate,

(5) XWAVE is entitled to compensation for the cooperation mentioned in paragraph (4) according to the currently valid price list at the time of contract termination, calculated on a time basis. In addition, the CUSTOMER must reimburse XWAVE for all necessary and proven expenses incurred.

§ 20. Force Majeure

Neither party is obliged to fulfill the contractual obligations in the event and for the duration of force majeure. The following circumstances are considered force majeure in this sense:

– Fire/explosion/flood not attributable to the party,
– War, mutiny, blockade, embargo,
– A labor dispute lasting more than six weeks and not caused by the party,
– Technical problems with the Internet beyond the control of the party; this does not apply if and to the extent that XWAVE provides the telecommunications service.

Each party must promptly notify the other party in writing of the occurrence of force majeure.

§ 21. Amendment of These GTC, Functionalities, and/or Service Description

(1) XWAVE is entitled to amend these GTC with six weeks’ notice by email, stating the effective date, provided that this does not affect essential provisions of the contract and is necessary to adapt to developments that were not foreseeable at the time of contract conclusion and whose non-consideration would significantly disrupt the balance of the contractual relationship. Adjustments or changes to these GTC can also be made to address difficulties in implementing the contract that arose due to gaps in the regulations after the contract was concluded. This is particularly the case in the event of a change in jurisprudence, if one or more clauses are affected.

(2) The CUSTOMER has the right to object to the amendment of these GTC in writing or by email within two weeks of receiving the notice. XWAVE will inform the CUSTOMER of this right of objection and the legal significance

of the two-week period in the notification. If the CUSTOMER does not object within this two-week period, the amended new GTC are deemed accepted. If the CUSTOMER objects to the amendment of the GTC within the two-week period, XWAVE is entitled to terminate the contract in writing with effect from the effective date of the new GTC within two weeks of receipt of the objection. The CUSTOMER cannot assert any claims against XWAVE due to this termination. If XWAVE does not terminate the contract within this two-week notice period, the contract will continue based on these GTC.

(3) XWAVE is also entitled, with six weeks’ notice by email, to change the functionalities and/or service description if this is required for a compelling reason and the CUSTOMER is not objectively disadvantaged (e.g., retention or improvement of functionalities of the SSW software). A compelling reason exists, particularly in the case of technical innovations. This is the case, among other things, if and to the extent that a change in functionalities of the SSW software, workflows supported by the SSW software, and/or restrictions on the usability of data previously generated are associated with the provision of a new version or change. If the CUSTOMER does not object to the change under the preceding paragraph (2), the change becomes part of the contract.

(4) The right to object under paragraph (2) does not exist if the changes involve function extensions of the SSW software and do not include restrictions on functionalities and/or do not restrict the workflows supported by the SSW software.

§ 22. Applicable Law / Jurisdiction / Binding Effect

(1) This contract is subject to the law of the Federal Republic of Germany. The UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 – CISG) is excluded.

(2) If the CUSTOMER is a merchant, a legal entity under public law, or a special fund under public law, or if they do not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is XWAVE’s place of business in Frankfurt am Main (Germany). However, XWAVE is entitled to sue the CUSTOMER at their place of residence and/or business. For claims against XWAVE, the place of business of XWAVE is the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive jurisdiction remain unaffected by this provision.

(3) If individual provisions of these GTC are wholly or partially legally invalid or unenforceable, or if gaps in the regulations arise, the remaining provisions shall remain unaffected.

(4) The contract language is German.

(5) Only the German version of these GTC is binding.