Conditions for Use L3+ Test Use

1.        Product and Scope

1.1.    The L3+ analysis tool („L3+“ or „Tool“) is operated by Lührmann Deutschland GmbH & Co. KG, Osterberger Reihe 2-8, 49074 Osnabrück, Germany („Lührmann“, „Provider“ or „we“ or „us“) in cooperation with bulwiengesa AG, Wallstraße 61, 10179 Berlin, Germany and made available at http://www.l3.plus.

1.2.    L3+ is an interactive analysis tool that was developed in scientific cooperation with the above-mentioned bulwiengesa AG. It provides all relevant location data in more than 100 cities in Germany with over 250 pedestrian areas and over 14,000 commercial premises for the creation of commercial real-estate analyses. The tool provides information on industry structure, vacancy rate, site comparison, current operators and photo material.

1.3.    Our offering is directed at business operators in the sense of section 14 of the German Civil Code (BGB). With the conclusion of this agreement you declare that you are a business operator in the sense of section 14 BGB.

1.4.    The partial use of the tool by you („User“ or „you“) is subject to these Terms of Use „Terms of Use“), insofar as we have not concluded explicitly different regulations with the User. Contradictory, deviating or additional general terms and conditions of the User shall not become part of the contract, even if known by the Provider, unless their validity is explicitly consented to in writing. Insofar as the User contradicts the validity of these Terms of Use with reference to its own terms and conditions, the validity of its conditions is hereby explicitly contradicted.

2.        Conclusion of the Contract

2.1.    Through our website, which can be reached at www.l3.plus, via the order form the User can submit a binding offer for conclusion of a contract with Lührmann Deutschland GmbH & Co.KG for the annual subscription for the test use of L3+. After the email address has been successfully verified, the order form data is sent to Lührmann and a User is created in the L3+ tool after review.  Full access to the L3+ tool is then sent to the User at the saved email address.

2.2.    The contract only enters into force when the User receives a confirmation email with the access data to the tool as an implied declaration of acceptance.

2.3.    Before conclusion of the contract, we retain the right to reject it without stating any reason.

3.        Test Use of the Tool

3.1.    From the time of receipt of the confirmation email mentioned in sub-item 2.2 („beginning of the contract“) we grant the user free-of-charge access to the Tool for four weeks („test period“).

3.2.    During the test period the user can log in to a user account and request real-estate analyses as defined in sub-item 4.1 for the pre-defined cities Dortmund and Flensburg.

3.3.    The usage agreement ends with the expiry of the test period. A termination by the parties is not required.

3.4.    After the end of the test period the access assigned to the User will be deactivated, and any individual settings, bookmarks, etc. will be deleted. For further use of the services after the test period, the User and the Provider must conclude another agreement.

3.5.    The right to terminate for good cause remains unaffected. Good cause exists particularly if the User substantially violates obligations that are its responsibility according to these Terms of Use.

4.        Test Use of the Tool

4.1.    We grant the user, save as otherwise stated in these Terms of Use, for the test period of the agreement, the simple, spatially unrestricted, non-transferable, non-sub-licensable right, for consideration, to use L3+ for the creation of commercial real-estate analyses for the purpose of testing the Tool and determining whether the user would like to conclude an agreement on full access to the Tool.

4.2.    The User does not have the right to use the real-estate analyses or parts thereof for commercial real-estate analyses and assessments, presentations, prospectuses and analyses with regard to any third parties, particularly investors, banks, auditors and depositary institutions of the User as well as real-estate agents or sellers or for further disclosures and publications of the real-estate analyses or parts thereof (e.g. in press releases, marketing products, on the User‘s website, in social media or similar) in analogue and digital form or to otherwise use them commercially.

4.3.    The use of the tool is exclusively, save as otherwise stated in these Terms of Use, permitted for the company of the User as described in 3.1. A transfer of real-estate analyses to third parties (particularly to competitors of Lührmann for the purpose of performing commercial real-estate analyses or related services) – unless explicitly agreed – is not permitted. Appropriate special agreements shall be made for subsidiaries, partners or other groups of companies.

4.4.    A further use of real-estate analyses and other content provided by the tool is not permitted unless the further use has been explicitly agreed to or is required due to mandatory laws. In particular, the User is not permitted to lease, sell, lend further license, make publicly accessible, edit or use the user access to the tool, content of the tool or real-estate analyses or allow them to be used for the production or operation of a competing product or otherwise use or exploit or grant third parties access to the tool or real-estate analyses via interfaces or user accesses unless this use has been explicitly agreed to or is required due to mandatory laws.

4.5.    The intellectual property and all copyrights to delivered real-estate analyses and the information, concepts, evaluations and procedures contained therein remain with the Provider.

5.        Usage Scope and Obligations

5.1.    The User acquires a user license in the context of which the User may use the tool in accordance with these Terms of Use. The user license authorizes use of the tool within all of the User‘s locations without limitation of the number of installations and users. The user license also authorizes the User‘s subsidiaries, provided that the User holds more than a 50-percent share in them.

5.2.    The User shall protect the user and access authorization as well as identification and authentication safeguards from access by unauthorized third parties and not pass them on to unauthorized users.

6.        Technical Requirements for the Use of L3+

The tool is accessed via telecommunications media. Requirements for the use of the tool are (each current according to the state of the art):

• Internet access,
• PC, notebook, tablet PC,
• browser, and
• activation of Java Script.

The provision of the above-named requirements for the use of the Tool and telecommunications media are the responsibility of the User.

7.        Prices and Payment Conditions

The use of the tool during the test period of four weeks is free of charge. The provision of the service during the test period is a loan.

8.        Defect Rights of the User

8.1.    We do not guarantee freedom from defects or uninterrupted accessibility and usability of the tool. Other legal and contractual defect rights are excluded. The regulations in this item do not restrict the User‘s rights to compensation.  Item 9 remains unaffected.

8.2.    A guarantee of factual accuracy is only assumed for self-determined and created information and data within the context of the usual duty of care.  A guarantee for the factual accuracy of data and facts from third parties is not assumed.

9.        Liability

9.1.    Lührmann is liable only for intentional damages or damages that are attributable to gross negligence.  Any further liability according to legal regulations is excluded.

9.2.    The limitations of liability in sub-item 9.1 do not apply in cases of mandatory statutory liability (in particular according to the product liability law) and in case of culpably caused physical injuries. Furthermore, they do not apply if and to the extent that the Provider has taken over a guarantee.

9.3.    The Provider shall not be liable, independent of legal foundation, for indirect commercial losses, loss of profit, lost sales or transactions, unconcluded agreements or contacts, loss of expected profit, loss of use or the damage of software, data or information or the loss or damage of goodwill or other consequential losses that arise as a result of or in conjunction with this contract. Sub-item 9.1 remains unaffected.

9.4.    The contractual parties agree that the normally foreseeable damage under sub-items 9.1 to 9.3 is limited to the amounts that the User has paid to the Provider in the 12 months before the claim arises or which the User is obligated to pay the Provider.

9.5.    Sub-items 9.1 to 9.4 apply accordingly for the liability of the Provider for futile expenditures.

9.6.    The User is obliged to take reasonable measures for preventing and reducing damage, for example by regularly changing the password.

10.     Indemnification

10.1.  Indemnification by Lührmann. If third parties assert claims against the User due to a violation of their intellectual property due to the use of the tool or the contractual services, the User shall show these claims to Lührmann immediately in writing. Lührmann shall indemnify the User from all justified claims (including justified legal fees) that third parties assert against the User due to an at least negligent violation of intellectual property by Lührmann that results from the contractual use or services of the Tool. If such a claim exists or such an infringement appears possible, the User agrees that on written request from Lührmann the User will discontinue the use and return any materials that are the object of the claim due to violation of property rights.

10.2.  Sub-item 10.1 shall not apply if the claimed infringement in whole or in part is the consequence of (i) an unauthorized modification of the tool or the contractual services, (ii) the combination or use of the tool together with other software, hardware or technology that has not been approved or provided by Lührmann, (iii) the use of an outdated or modified version of the tool if the violation could have been avoided by the use of a current version of the tool or the contractual services, which was available for the User; or (iv) the User content.

10.3.  Indemnification by the User. If third parties assert claims against Lührmann due to a violation of the provisions in items 5 and/or 7 by the User, Lührmann shall show these claims to the User immediately. The User shall indemnify Lührmann from all claims (including justified legal fees) that third parties, including government authorities, assert in this connection against Lührmann or against the User. If such a claim exists or such an infringement appears possible, the User is obligated to cease the violation of the respective contractual obligation immediately, to carry out all necessary and reasonable actions to prevent further violations or other damage, and to take action to prevent similar violations in the future. If User content is affected, this may include that certain User content is moved offline.

11.     Data Protection

In the data protection declaration, which can be accessed here, we inform you of the processing of personal data in connection with the use of the Tool.

12.     Confidentiality

12.1.  The parties are aware that during the term of the contract they have access to certain confidential information of the other party or confidential information of third parties, which the disclosing party is required to treat as confidential.  „Confidential information“ is all written, electronic or verbal information, which (i) one party made known to the other party, (ii) is not generally known or publicly accessible either overall or in the exact order or composition of its components, (iii) relates to the activity of one party or of a third party, and (iv) has either been designated as confidential or should reasonably be treated as confidential due to the nature of the circumstances under which the disclosure occurred. Confidential information from Lührmann includes in particular all information regarding the tool. Both parties acknowledge that the disclosing party or the third party remain the owner of all rights to confidential information.

12.2.  Notwithstanding the above, the User acknowledges that Lührmann collects statistical data about the use of the Tool by the User and may pass on this statistical data to third parties. The contractual duties of confidentiality shall remain in force for two (2) years after the end of the contract.

12.3.  Notwithstanding the above, the provisions of sub-items 12.1 and 12.2 of the Terms of Use shall not apply to confidential information that (i) is freely available or generally known at the time of its disclosure, (ii) is freely available or generally known through no fault of the recipient, (iii) was lawfully communicated to the recipient by persons who in this regard were not bound to duties of confidentiality, (iv) is already in the possession of the recipient at the time of the disclosure without duties of confidentiality being linked with this, (v) was developed independently by the recipient, or (vi) is authorized for release or dissemination without limitation by the disclosing party. Notwithstanding the above, each party may pass on confidential information to the required extent (i) in order to follow a court or official order or otherwise to comply with the requirements of mandatory statutory regulations.

12.4.  The publication and labeling obligation according to sub-item 3.5 shall remain unaffected by this.

13.     Miscellaneous

13.1.  Applicable Law and Legal Venue. This contract is subject to German law, with exclusion of its conflict-of-law rules and of the UN Sales Convention. The legal venue for all disputes arising from the contract is Osnabrück.

13.2.  Written Form. Modifications or additions to this contract must be in written form. This also applies for modifications of this written form clause.

13.3.  Right of Modification. Notwithstanding the regulations in sub-item 13.2 the Provider is entitled to modify these non-essential provisions of the agreement at any time provided that such modifications do not result in a transformation of the structure of the contract as a whole. The Provider shall inform the User of the modifications/additions (in writing or electronically) with appropriate notice. If the User does not consent to the respective modifications or additions, the User can object to the modifications/additions. The objection must be in text form. If the User does not object to the modified provisions, the modifications or additions shall be deemed to have been accepted.

13.4.  Assignment Without Lührmann‘s prior, explicit written agreement, the User is not entitled to assign its rights from the contract or delegate its obligations from this contract.   Lührmann may alienate and assign all of its rights from the contract to third parties. With the conclusion of the contract, the User authorizes Lührmann to disclose to third parties the information and documents required for the alienation and assignment of such rights.

13.5.  Offset and Retention. The User only has a right to offsetting or retention with regard to Lührmann only in case of legally established or undisputed counterclaims.

13.6.  No Contract for the Benefit of Third Parties. The contractual parties acknowledge that, unless explicitly provided for otherwise in this contract, the provisions of the contract exist exclusively for the benefit of the parties. This contract transfers neither explicitly nor by implication the right to third parties to assert provisions of the contract with regard to natural or legal persons.

13.7.  Severability Clause. Should individual or multiple provisions of this contract be ineffective or unenforceable or become ineffective or unenforceable after conclusion of the contract, the effectiveness of the contract remains otherwise unaffected. The ineffective or unenforceable provision shall be replaced by that effective and enforceable regulation whose effects come closest to the economic aim that the contractual parties pursued with the ineffective or unenforceable provision.