General Terms and Conditions
of LCM Digital GmbH for the lcmd platform
Status: March 2023
The following terms and conditions apply to the contracts of LCM Digital GmbH, Obere Waldplätze 22, 70569 Stuttgart, (hereinafter referred to as LCM Digital) via the lcmd platform (hereinafter referred to as the platform). Conflicting, deviating or supplementary general terms and conditions of the Customer shall not become part of the contract, even if LCM Digital is aware of them, unless their validity is expressly agreed in writing. Insofar as the Customer objects to the validity of these General Terms and Conditions with reference to its own terms and conditions, the validity of its terms and conditions is hereby expressly rejected.
1. Description of services
1.1 Standard services
1.1.1 LCM Digital provides its Customers with the lcmd platform as a standard service via the Internet for use by way of "Software as a Service" (SaaS) and as a mobile application for mobile devices ("Standard Services").
1.1.2 As part of the Standard Services, LCM Digital enables the Customer to grant individual users access to its customer account and the functionalities of the lcmd Platform contained therein ("Customer Account").
1.1.3 The standard services also include the provision of storage space for the Customer in order to be able to use the production planning and control functions and associated free text and upload fields of the lcmd platform in accordance with the contract ("hosting"). Due to technical limitations, LCM Digital can only guarantee the smooth use of the standard services up to a certain amount of data. As soon as the information hosted for the customer exceeds this amount of data per project, use may be impaired. The current maximum data volumes that can be processed by LCM Digital can be viewed via the lcmd Help Center.
1.1.4 The transfer of standard services takes place at the router output of the data center used by LCM Digital. The connection of the Customer to the Internet, the maintenance of the network connection and the procurement and provision of the hardware and software required by the Customer are not part of the contractual service provided by LCM Digital.
1.1.5 Support and administration services (shown separately in the price calculation): Receipt of fault or outage reports at the e-mail address support@lcmd.io and via the service portal of the lcmd platform.
1.2 Additional services
1.2.1 LCM Digital shall provide the following additional services ("Additional Services") as agreed within the scope of the existing technical and operational possibilities for a separate fee:
- Consulting services;
- Implementation support;
- training and qualification services
1.2.2 The customer may order one or more additional services in an order form during the term of the standard services. Such ordered Additional Services are also subject to this Agreement and are subject to the Terms of Use under this Agreement.
2 Rights of use of the customer
2.1 The Platform and its components are legally protected; LCM Digital or its licensor(s) are entitled to the intellectual property and other property rights to the platform.
2.2 Use of the Platform requires the Customer to register and set up a customer account on the platform in accordance with the following provisions. To register a customer account, the customer must enter the requested data. After registration, the customer can log in by entering the user name and password (login). The customer is obliged to keep the data stored on the platform as part of the registration process up to date and to make changes to the customer account without delay.
2.3 For the term of the respective contract, LCM Digital grants the Customer the worldwide, non-exclusive right to use the lcmd platform and the content made available on it by LCM Digital for its own purposes for the management of work processes. For contractual downloads and file exports in accordance with Section 2.4, this right of use applies for an unlimited period of time. The Customer may only use the lcmd platform and the standard services within the agreed capacity.
2.4 Within the scope of the contract concluded, the Customer has the right to enter and visualize project data exclusively using the functionalities provided on the lcmd platform and to export it in CSV, PDF or MPP.XML format, for example, or to make these options available to the users of its customer account. In particular, however, the customer is not permitted to sell, rent, lend, sublicense or otherwise distribute, reproduce, copy, make publicly accessible, edit or translate, reverse engineer or otherwise modify the lcmd platform or any content on it in whole or in part. Any further use of the lcmd platform and the content made available on it is not permitted unless expressly agreed or required by mandatory statutory provisions.
2.5 Insofar as LCM Digital enables the Customer to access data on the lcmd platform or content uploaded to the lcmd platform by users ("Customer Content"), LCM Digital remains entitled to make changes to the structure of the data or the data format at any time.
2.6 Insofar as LCM Digital provides new versions, updates or upgrades or commissioned further developments of the lcmd platform during the term of the contract, the above right of use shall apply to these in the same way.
2.7 Subject to the rights granted under the Contract, including these Terms and Conditions, LCM Digital reserves all rights and title in and to the Standard Services and the lcmd platform and the intellectual property and know-how relating thereto. The Customer acknowledges that it does not own or acquire any rights other than those expressly granted under the Contract, including these Terms and Conditions.
3 Remuneration
3.1 All agreed fees are exclusive of statutory value added tax. LCM Digital's prices valid at the time the service is provided shall apply.
3.2 The costs for necessary and pre-arranged travel shall be invoiced by LCM Digital on presentation of proof as follows: Rail: 2nd class; car: at the applicable flat rate per km driven; flight: economy class within Europe.
3.3 Invoices are issued electronically; LCM Digital only sends electronic invoices (e.g. in PDF format). If the Customer wishes to receive a paper invoice, he must reimburse the costs incurred.
3.4 If the Customer defaults on payment, LCM Digital is entitled to block access for the Customer and its users. The Customer's obligations, in particular to pay the fees due, remain unaffected by this. LCM Digital also reserves the right to block access for security reasons if the Customer culpably violates statutory provisions and/or has given cause for termination of the contractual relationship without notice, despite a warning. Such a reason justifying blocking is given in particular if the customer creates illegal or immoral content via the service or stores such content there.
4 Obligations of the customer
4.1 Administrator and user access
The Customer may allow administrators and other users to access and manage the functionalities of the lcmd platform as part of their customer account within the scope of the specifications of the respective license package. In order to use the platform, each user must register on the platform and accept the lcmd platform Terms of Use.
4.2 Communication with Users
As part of the lcmd platform and the contractual services, it may be necessary for LCM Digital to communicate with users from time to time (e.g. to send them push messages or emails). In addition, the lcmd platform contains functionalities that enable users to communicate with each other. The customer agrees to this communication and is obliged to support LCM Digital in this communication with users. In particular, but without limitation, the Customer shall inform users of this in accordance with applicable data protection law. This Section 4.2 does not create any obligation on the part of LCM Digital to provide specific communication tools within the framework of the lcmd Platform.
4.3 Change of contact person/company data of the Customer
The Customer shall inform LCM Digital immediately of any change to its name or company name, its place of residence or business, its billing address, its legal form or its bank details. This notification must be made in writing or by e-mail.
4.4 Permitted use
LCM Digital may monitor or review the Customer's use of the lcmd Platform and the contractual services in order to check whether the Customer is using the lcmd platform and the contractual services to the agreed extent. The Customer must inform LCM Digital in advance of any foreseeable significant increase in the scope of use at the e-mail address support@lcmd.io. Any use of the lcmd platform and the contractual services by the Customer beyond the agreed capacity will only be made available to LCM Digital after prior consultation with LCM Digital. This does not affect LCM Digital's rights to compensation or payment of fees for excessive use.
4.5 Secure storage of access authorizations
The Customer shall protect the user and access authorization assigned to him or the users as well as identification and authentication safeguards against access by unauthorized third parties and shall not pass them on to unauthorized users. The Customer is obliged to select the password for its access to the lcmd platform securely, to store it securely and to change it regularly and to comply with LCM Digital's requests and instructions on IT security. As soon as the user has indications that the usage and access authorizations have been obtained unlawfully by a third party or could be misused, the Customer is obliged to inform LCM Digital immediately in order to minimize damage.
4.6 Data backup
Notwithstanding LCM Digital's obligation to back up data, the Customer shall back up the data and content transmitted to LCM Digital and entered in the lcmd platform regularly and in accordance with the risks involved and create its own backup copies in order to ensure that the data and information can be reconstructed in the event of loss.
4.7 Statutory information obligations and obligation of users to comply with the terms of use
The customer is obliged to fulfill all legal information obligations that are incumbent upon him because he provides his customer account to his users, as well as to fulfill data protection information obligations.
4.8 Data protection and other legal requirements
The Customer is obliged to comply with applicable data protection law and other legal requirements. LCM Digital draws the Customer's attention to the fact that, if and insofar as it makes the platform available to its users, the Customer is the controller within the meaning of Article 4 No. 7 of the General Data Protection Regulation - "GDPR" (Regulation EU 2016/679), as described in more detail in Section 9.
4.9 Privacy policy
With regard to the collection and processing of personal data by LCM Digital, LCM Digital's privacy policy applies. Insofar as the Customer collects and processes personal data of end users, the Customer is responsible for compliance with data protection regulations, in particular the GDPR.
4.10 Other cooperation services
In all other respects, the Customer is obliged to provide all relevant cooperation services immediately and free of charge, in particular if LCM Digital requests this and the necessary measures do not exceed a reasonable effort.
5. Non-compliance with customer obligations
LCM Digital is entitled to terminate the contract with the Customer extraordinarily if the Customer breaches its obligations, in particular in accordance with Section 4 above, or is in arrears with payment of at least one month's fee for a period of two consecutive months. Actions by end users to whom the Customer has granted access to the LCM Digital platform shall be attributed to the Customer, irrespective of any other claims by LCM Digital. LCM Digital may demand that the Customer requires end users to comply with their obligations and/or block access to end users who breach their obligations.
6 Customer content
6.1 Rights to customer content
The Customer hereby grants LCM Digital the simple, free of charge and sublicensable right to use the content posted by the Customer and the users authorized by the Customer for the term of the contract, insofar as this is necessary for the provision of services by LCM Digital under this contract. This includes, among other things, the right to save, edit and change the order of Customer Content, technically convert it, convert it into another format and use special fonts for mobile devices or make the Customer Content accessible to users. LCM Digital shall also be granted the right to permanently store posted content in pseudonymized form in order to evaluate it for the purpose of improving or expanding the range of services. The Customer warrants that this granting of rights does not infringe the rights of third parties and, in particular, that it has obtained the necessary rights from the users authorized by it.
6.2 Access to customer content
Unless otherwise agreed, the Customer must use the current version of the lcmd Platform, accessible via https://share.lcmdigital.com, to use the lcmd platform.
7. Service level
LCM Digital shall provide the standard services in accordance with the service levels. The service levels enable the Customer to control and monitor the quality and timeliness of the standard services provided by LCM Digital.
7.1 Definition of the service levels
Standard services - lcmd platform, software services - hosting services
The service level for the standard services and hosting services is defined as follows:
The average system availability/month (lcmd platform & hosting services) is 99%.
Availability is calculated as follows:
System Availability (%) = (Monthly Total Time - Unplanned Downtime) / Monthly Total Time
"Availability" means the ability of the Customer or its Users to access the functionalities of the lcmd platform and Hosting Services as agreed in the Terms of Use.
"Scheduled Downtime" means the total time (in minutes) in a calendar month that the lcmd platform and Hosting Services are unavailable due to scheduled system maintenance or other scheduled downtime. LCM Digital will use reasonable efforts to perform scheduled system maintenance between 9:00 p.m. and 5:00 a.m. CET and provide reasonable notice of such system maintenance.
"System Availability" means, in relation to availability in a calendar year, the ratio, expressed as a percentage, obtained by subtracting the unscheduled downtime in that year from the total time in that year and then dividing the difference so obtained by the total time in that year (see formula above).
"Total time" includes all minutes of the relevant calendar year during the term of the standard benefits.
"Unplanned Downtime" means the total time (in minutes) of unavailability in a calendar year excluding Planned Downtime and excluding downtime due to circumstances beyond LCM Digital's control. Such circumstances include, without limitation: (i) Customer's breach of any provision of the License Terms, (ii) Customer's failure to comply with any provision of this SLA, (iii) incompatibility of Customer's equipment or software with the agreed requirements for use of the Standard Services, (iv) poor or inadequate performance of Customer's systems or equipment, (v) use of the Standard Services by Customer or its users substantially in excess of the agreed volume (i.e., two or more levels), or (vi) Force Majeure (as defined in the License Terms).
Measurement Point is the LCM Digital Service Delivery Point for lcmd platform. Measurement Time is the month during the Standard Services Term.
7.2 Rights in the event of non-compliance
7.2.1 General: In the event of unplanned downtime, LCM Digital shall make commercially reasonable efforts to remedy the unplanned downtime within a reasonable period of time.
7.2.2 Service Credits: If LCM Digital fails to meet the Service Level for the lcmd platform, Customer shall be entitled to the service credits set forth below ("Service Credits"), provided that the Service Credits for unplanned downtime shall not exceed 20% of the fees paid by Customer to LCM Digital for the lcmd platform and Standard Services provided in the applicable Service Month.
7.2.3 Receipt of service credits: A service credit will be issued after an unplanned downtime if the Customer requests this in writing from LCM Digital within 10 working days. LCM Digital will review the request as soon as possible and, if approved, offset the relevant service credit note against the charges payable by the Customer for standard services.
7.3 Measurement, reports and redundant data storage
7.3.1 System monitoring and measurement: LCM Digital ensures continuous monitoring of the service levels. All measurements of Service Levels will be made on a monthly basis for each calendar month during the Standard Services Term.
7.3.2 System Performance Reports: At the request of the Customer, LCM Digital will provide a report for the relevant month, or longer if required, on unplanned downtime measurements and system availability calculations. If Customer has any complaints regarding any measurement or other information set forth in such report, Customer shall notify LCM Digital of such complaints in writing within 5 calendar days of receipt of the report, and the accuracy of the report shall be deemed sufficient if no such notification is provided by Customer. Any such notice must specify the measurements complained of and detail the nature of the complaint. LCM Digital and the Customer undertake to resolve any such disagreements regarding the Service Levels and/or associated measurements as far as possible and in a timely manner by mutual agreement.
7.3.3 Redundant data storage: LCM Digital shall store several redundant copies of the project data.
7.4 Requirements to be fulfilled by the customer
7.4.1 System Requirements: The service standards listed in this Section 7 assume that the Customer meets the system requirements specified by LCM Digital. The currently valid system requirements can be viewed via the LCM Digital Help Center.
7.4.2 Additional obligations of the Customer: Unless otherwise agreed between the parties in the License Terms or a separate written support agreement, Customer is responsible for (i) the maintenance and support of its computer networks, servers, software and operating equipment used to use the lcmd Platform or Standard Services or Services for such maintenance and support, (ii) the proper configuration of Customer's systems in accordance with the Access Protocols, and (iii) the Internet connection for access to the Standard Services.
7.4.3 Unplanned Downtime Report: In the event of unplanned downtime, Customer must notify LCM Digital immediately. Unplanned downtime shall be deemed to commence at the time LCM Digital receives the detailed notice from Customer or the time LCM Digital first becomes aware of the unplanned downtime.
7.4.4 Consequences of non-performance by the Customer: LCM Digital shall be released from the fulfillment of its obligations set out in this Section 7 to the extent that it is unable to fulfill these obligations in whole or in part because the Customer has not fulfilled the contractually agreed requirements or other obligations to cooperate.
8 Liability
8.1 The service level described in clause 7 conclusively describes the Customer's rights in the event of inadequate performance or availability of the lcmd Platform. The parties agree that this covers the normally foreseeable damages that may arise in the event of a breach of material contractual obligations.
8.2 LCM Digital's strict warranty liability for initial defects in accordance with Section 536a (1) 1. alt. BGB is excluded - unless it concerns injury to life, limb or health. Otherwise, the Customer shall only be entitled to compensation for initial defects if LCM Digital is responsible for their existence or non-elimination.
8.3 Further warranty rights of the Customer or claims for damages, regardless of the legal grounds, are excluded. This shall not apply if damage was caused by LCM Digital intentionally or through gross negligence, in the case of mandatory statutory liability (in particular under the Product Liability Act) and in the case of culpably caused bodily injury or breach of material contractual obligations. In the event of a breach of material contractual obligations, liability shall be limited to the foreseeable damage typical of the contract. The contracting parties agree that these are limited to the amounts which the Customer has paid to LCM Digital in the 12 months prior to the claim arising or which the Customer is obliged to pay to LCM Digital.
9 Data protection
9.1 In connection with the Contractual Services, LCM Digital may process certain Customer Data that meets the definition of Personal Data (as defined by the GDPR). The Privacy Policy for End Users of LCM Digital shall apply.
9.2 Content data
LCM Digital processes all Customer Content and all other content and data that users (including the Customer's administrator) upload, enter or exchange (e.g. communication with other users) on the lcmd platform ("Content Data") on behalf of the Customer. In this respect, the Customer is the controller and LCM Digital is the processor acting on the instructions of the Customer. Details are agreed in the respective agreement on order processing (order processing agreement). In the event of contradictions between the contract, these General Terms and Conditions and the order processing agreement, the terms of the order processing agreement shall prevail.
10 Confidentiality / Secrecy
10.1 LCM Digital and the Customer undertake to maintain the strictest confidentiality with regard to all confidential processes of which they become aware in the course of the preparation, execution and fulfillment of the contract, in particular business and trade secrets of the other party to the contract, and not to pass these on or exploit them in any other way.
10.2 LCM Digital shall have the right to include the Client in its own reference list on its website or other promotional materials, such as case studies, by mentioning the Client's company name, logo and other marks, and by mentioning general project details, e.g. project location, project name and project specifics.
11 Miscellaneous
11.1 Assignment of rights and obligations/offsetting
The assignment of rights and obligations arising from this contract requires the consent of the other contracting party. Offsetting by the customer is only permitted if the customer's counterclaims are undisputed or have been legally established.
11.2 Amendments and additions
Amendments and additions to this contract must be made in writing and must be declared by authorized representatives of both contracting parties. This shall also apply to any waiver of the written form requirement.
11.3 Applicable law
This contract and its interpretation shall be governed by the law of the Federal Republic of Germany, excluding its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
11.4 Place of jurisdiction
The exclusive local place of jurisdiction for all disputes arising from or in connection with this contract, including any tortious claims, is the registered office of LCM Digital's company (registered office); however, LCM Digital is also entitled to sue the Customer at its registered office.
LCM Digital GmbH