General terms and conditions
These General Terms and Conditions (GTC) of Lemna UG (haftungsbeschränkt), ℅ Factory works, Lohmühlenstraße 65, 12435 Berlin, represented by the Managing Director Cathleen Metzke, (hereinafter: "Lemna" or "we") apply to all customers. The contract is aimed exclusively at companies within the meaning of § 14 BGB.
We are the operator of the online workplace mental health platform "Lemna" (hereinafter: "Platform"), which is aimed exclusively at companies (hereinafter jointly: "Customers"). The Platform offers a web application for the analysis of workplace stress and the planning of health and personnel measures.
§ 1 Subject matter of the contract
The subject of these GTC is the granting of the use of the "LEMNA" platform (hereinafter "Platform") via the Internet, limited in time to the duration of the Contract. The Platform is intended to help empower Customers' employees to understand and strengthen their well-being and to help Customers create healthy work environments for all. Through the platform, clients, as business owners, can obtain anonymous information about employee well-being. By integrating employees, they can share their health status and receive support to improve well-being through your details and inclusion in collaborating platforms.
§ 2 Services of the Provider; Platform and Storage Space
(1) The Provider grants the Customer the use of the most current version of the Platform for the agreed number of Authorized Users via the Internet by means of access through a browser.
(2) The Provider shall guarantee the functionality and availability of the platform for the duration of the contractual relationship and shall maintain it in a condition suitable for use in accordance with the contract. Different packages can be booked so that the functional scope of the platform results from the respective service description.
(3) The Provider may update and further develop the platform at any time and, in particular, adapt it due to a changed legal situation, technical developments or to improve IT security. In doing so, the Provider shall give due consideration to the legitimate interests of the Customer and inform the Customer of any necessary updates in a timely manner. In the event of a significant impairment of the legitimate interests of the customer, the customer shall have a special right of termination.
(5) The Provider shall not owe any adaptation to the Customer's individual needs or IT environment unless the parties have agreed otherwise.
(6) The Provider shall regularly perform maintenance on the Platform and inform the Customer thereof in due time. Maintenance shall be carried out regularly outside the Customer's normal business hours, unless maintenance must be carried out at a different time due to compelling reasons.
(7) The Provider shall take state of the art measures to protect the data.
(8) There is no claim to the conclusion of a contract. The provider can reject a registration without giving reasons. In this case, the transmitted data will be deleted immediately.
(9) During the term of the contract, Lemna shall enable the customer to access the platform for its own purposes in order to use the information and functional offerings of the platform.
(10) The scope of possible uses of the platform is modular. The concrete scope of services for each individual customer depends on the service package or packages booked. The scope of the respective service packages results from the package descriptions available online at Lemna.de or, alternatively, from the agreements expressly made between the parties. Additional services (e.g., assistance with the initial setup of a customer account) are not part of Lemna's service obligations. However, these may be provided by Lemna on a case-by-case basis for a fee on the basis of a separate offer.
(11) The Customer may increase the agreed scope of services at any time (e.g. number of authorized users, extended service package). If the customer increases the scope of services, the correspondingly higher costs shall be charged to the customer. At the end of each contract term, the Customer may also switch to a package with a lower scope of services or reduce the number of users.
(12) The Customer shall have no claim to the surrender of the source code of the Platform or individual applications of the Platform.
§ 3 Modalities of use
(1) The platform shall not be physically transferred to the Customer.
(2) The Customer shall receive simple, i.e. non-sublicensable and non-transferable rights to use the platform by means of access via a browser in accordance with the contractual provisions for the most current version of the platform for the number of users specified in the contract.
(3) The user accounts are provided on a personal basis. The customer is not permitted to use the platform for any other purpose. The creation of more than one user account for the same natural person or legal entity is not permitted. The user account is not transferable. The customer is given the option to set up access to the platform for natural persons as authorized employees. These can use the functionalities of the platform on behalf of the customer. The customer is obliged to ensure that its authorized users use the platform in accordance with these GTC and comply with the customer's obligations. Actions of the customer's authorized employees shall be deemed to be actions of the customer.
(4) The Service will be provided in cooperation and using and linking with third party applications, such as Open AI, AWS, Slack and MSTeams. The list is not exhaustive. The cooperation with third party companies is at the discretion of the provider. Corresponding cooperations and linkages can be changed at any time during the term of the contract.
(5) Use of the Lemna Platform requires registration. Within the scope of registration, a user account is created for the customer, through which the customer can use the platform and create other authorized employees as users. Registration by Lemna is completed only upon confirmation to the e-mail address provided by the customer.
(6) When registering the customer or activating authorized employees as users, the customer must observe the following: Users must have reached the age of 18. Users must keep access data secret and appropriately prevent third parties from gaining knowledge of it. The customer must ensure that users comply with the provisions of these GTC.
The subject of these GTC is the granting of the use of the "LEMNA" platform (hereinafter "Platform") via the Internet, limited in time to the duration of the Contract. The Platform is intended to help empower Customers' employees to understand and strengthen their well-being and to help Customers create healthy work environments for all. Through the platform, clients, as business owners, can obtain anonymous information about employee well-being. By integrating employees, they can share their health status and receive support to improve well-being through your details and inclusion in collaborating platforms.
§ 4 Support and communication with the provider
The Customer consents to electronic communication with the Provider regarding the use of the Service, including any legal communication. If the Customer wishes to withdraw its consent or has any questions regarding the use of the Service or these Terms, the Provider should be contacted at info@lemna.io.
§ 5 Service Levels; Troubleshooting
(1) The Provider grants an overall availability of the Services of at least 95% per month at the Delivery Point. The handover point is the router exit of the Provider's data center.
(2) Availability shall be deemed to be the Customer's ability to use all main functions of the Platform. Maintenance times as well as times of malfunction in compliance with the remedy time shall be deemed times of availability of the platform. Times of insignificant disruptions shall not be considered in the calculation of availability. The Provider's measuring instruments in the data center shall be decisive for the proof of availability.
(3) The Provider shall remedy serious malfunctions (the use of the platform as a whole or a main function of the platform is not possible) also outside the service times at the latest within 2 weeks from receipt of the report of the malfunction - provided that the report is made within the service times (remedy time). If it is foreseeable that it will not be possible to remedy the malfunction within this period of time, the Provider shall inform the Customer thereof without undue delay and notify the Customer of the expected exceeding of the period of time.
(4) The elimination of insignificant disruptions is at the discretion of the Provider.
(5) The platform, the computing power required for the use of the platform and the storage and data processing space required for the operation of the platform and the storage of the data entered by the customers are provided by Lemna. Lemna does not owe the establishment and maintenance of the data connection between the customer's IT systems and Lemna.
(6) Any other legal claims of the Customer against the Provider shall remain unaffected.
§ 6 Obligations of the customer
(1) The customer shall protect the access data transmitted to it against access by third parties and keep it safe in accordance with the state of the art. The customer shall ensure that it is only used to the contractually agreed extent. The Provider shall be notified immediately of any unauthorized access.
(2) The Customer shall notify the Provider of any material changes to the Customer's data; this applies in particular to changes regarding the company name and address.
(3) The Customer is obliged to provide correct, comprehensive and up-to-date billing information and to update it if it changes for any reason. The Provider reserves the right to collect this information even for free trials for procedural reasons. In addition, the Provider reserves the right to request a copy of valid official photo identification and, if applicable, a copy of a current bank statement for the credit or debit card used for the booking.
(4) The Customer shall be obliged to consult the works council, if any, prior to the conclusion of the contract.
§ 7 Warranty
(1) With regard to the granting of the use of the platform, the warranty provisions of tenancy law ( §§ 535 et seq. BGB) shall apply.
(2) The Customer shall notify the Provider of any defects without undue delay.
(3) The warranty for only insignificant reductions in the suitability of the service is excluded. The strict liability according to § 536a para. 1 BGB for defects that already existed at the time of conclusion of the contract is excluded.
(4) The Provider does not guarantee the functionality and freedom from interference of the cooperating third-party providers. The customer must contact these for any claims. Beyond these GTC, the corresponding terms of use of the cooperating companies regarding the platforms shall apply.
(5) The Provider does not guarantee the quality of the performance of mediated professionals, such as coaches, psychological consultants or doctors. The Provider merely provides a mediation service. Any contractual relationships between the mediated professionals and the employees are outside of this contract.
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§ 8 Liability
(1) The parties shall be liable without limitation in the event of intent, gross negligence and culpable injury to life, body or health.
(2) Notwithstanding the cases of unlimited liability pursuant to § 8 (1), the parties shall be liable to each other in the event of a slightly negligent breach of duty only in the event of a breach of material contractual obligations, i.e. obligations the fulfillment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardizes the attainment of the purpose of the contract and compliance with which the other party may regularly rely on, but limited to the damage typical for the contract and foreseeable at the time of conclusion of the contract.
(3) The above limitations of liability shall not apply to liability under the German Product Liability Act (Produkthaftungsgesetz) or to guarantees assumed in writing by one of the parties.
(4) This paragraph shall also apply in favor of employees, representatives and bodies of the parties.
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§ 9 Terms of remuneration and payment
(1) The Provider offers the Services on the basis of subscription models, with the exception of the free trial version, which is free for a limited period 12 months. The free trial version is not automatically converted into a subscription.
(2) A subscription begins when the customer actively switches from a free trial to a subscription model or books one directly. The subscription is billed in advance and is carried out monthly as long as the service is not cancelled, i.e. the subscription is automatically renewed if the cancellation is not received at least one month before the next billing cycle.
(3) Failure to pay in full and/or on time may result in account suspension or termination and deletion of data.
(4) The Provider uses a third-party payment service to issue the invoices, which may have its own terms and conditions in addition to these Terms and Conditions. The Provider is not responsible for any disruptions in the payment process caused by the payment service. If the payment through the third party payment service is not desired, the Provider and the Customer will conclude an individual agreement on the payment terms.
(5) The remuneration to be paid by the Customer for the Provider's services shall be governed by the service agreement with the Provider. The customer's contact person in connection with a service contract and its remuneration and implementation is the respective provider as contractual partner. The customer can only assert the repayment of a remuneration against the respective provider. For the use of any payment functions of Lemna, the customer must register. The customer must provide payment information truthfully and update it immediately in case of changes. Lemna may reject payment methods specified by the customer. The means of payment permitted for the respective service are displayed to the customer in the order process.
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§ 10 Contract term and termination
(1) The term for the paid services is 12 months, for the free trial version two weeks. The contract can be terminated properly one month before the end of the minimum contract period of 12 months. If the contract is not terminated, the term shall be extended by a further 12 months.
(2) The right to terminate without notice for good cause remains unaffected. Good cause for termination on the part of the Provider shall be deemed to exist in particular in the event of misuse of the free use during test phases through multiple creation of a new account as well as in the event of multiple non-payment of the invoice after a reminder.
(3) The termination can be submitted within the user account on the platform. Alternatively, there is the possibility to terminate in writing.
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§ 11 Data protection; secrecy
(1) The applicable data protection provisions in force at the time shall be complied with.
(2) If and to the extent that the Provider has access to personal data of the Customer within the scope of the provision of services, the relevant personal data shall be processed solely in accordance with the provisions set forth therein and in accordance with the instructions of the Customer.
(3) Insofar as the contracting parties exchange confidential information within the scope of this contract, they shall ensure that unauthorized access to such information by third parties is not possible. These obligations shall remain in force even after termination of the contract. Confidential information is information that is marked as confidential or whose confidentiality is evident from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or oral form. The contracting parties shall use such information exclusively in the sense of the present contract.
(4) Confidential information may only be disclosed to third parties if this is indispensable for the performance of this Agreement. In this case, the disclosing contracting party must obtain a written confidentiality agreement from the third party prior to disclosure. The scope of this confidentiality agreement must comply with the standard set forth herein.
(5) The obligation to maintain secrecy shall not apply if a party is obliged to disclose the confidential information by law or on the basis of a final or non-appealable decision of an authority or court.
(6) For the purpose of performing the contract, the customer grants Lemna the right to reproduce the data to be stored by Lemna for the customer to the extent necessary to provide the services owed under the contract. Lemna is also entitled, but not obliged, to keep the data in a failover system or separate failover data center. In order to eliminate malfunctions, Lemna is further entitled to make changes to the structure of the data or the data format.
(7) Because it cannot be excluded that Lemna obtains access to personal data of the Customer or of third parties, the Supplementary Terms and Conditions on the Processing of Personal Data by Order pursuant to Article 28 of the Data Protection Regulation ("Order Processing Terms and Conditions") attached as Annex A as well as the respective Annexes to the Order Processing Terms and Conditions shall apply between the Parties and supplement this Agreement. The Customer is the responsible party with regard to personal data and guarantees that the statutory provisions on data protection law are complied with.
(8) These supplementary terms and conditions on the processing of personal data on behalf pursuant to Art. 28 of the Data Protection Regulation (hereinafter "Order Processing Terms" or "Terms") shall apply if and to the extent that, in the context of the provision of services pursuant to the GTC and other applicable documents ("Main Agreement"), Lemna (hereinafter "Lemna") processes personal data on behalf of the Customer, and the European General Data Protection Regulation 2016/679 (hereinafter "GDPR") applies thereto.
(9) The respective customer uses the services via a user account on Lemna's online platform. By completing the order process via the use of the platform or by sending an order confirmation by e-mail or in writing to Lemna, he expressly accepts the terms and conditions, if any, from the main contract, the GTC and the order processing contract. Lemna may rely on the fact that the person accepting the terms is authorized to make this declaration on behalf of the customer. For the purpose of these terms and conditions, the customer is the data controller in the sense of Article 4 No. 7 DSGVO and Lemna is the data processor in accordance with Article 28 DSGVO.
(10) Lemna processes personal data within the meaning of Art. 4 No. 4 DSGVO for the customer (hereinafter referred to as "customer data") exclusively on behalf of and according to the instructions of the customer. Anonymized data are not Customer Data within the meaning of the commissioned processing and the data designated in § 3 paragraph 1. The framework and scope of the data processing are set out in the main agreement. The Customer shall be responsible for assessing the permissibility of the data processing.
(11) The period of validity of these Terms and Conditions shall be governed by the provisions on the term and termination of the main agreement. They shall remain legally valid and shall automatically become invalid upon deletion of all personal customer data, as long as § 12 of the Terms and Conditions
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§ 12 Final provisions
(1) Should individual provisions of this contract be invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties shall replace such provisions by effective and feasible provisions which correspond as closely as possible to the meaning and economic purpose as well as the intention of the parties at the time of conclusion of the contract. The same shall apply in the event of a gap in the contract.
(2) There are no oral or written ancillary agreements to this contract. Amendments to this contract and its annexes must be made in writing.
(3) German law shall apply to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention).
(4) The place of jurisdiction is Berlin.
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Annex 1: Contract for order processing
This contract regulates the data protection obligations of the contractor Lemna UG (haftungsbeschränkt), ℅ Factory works, Lohmühlenstraße 65, 12435 Berlin, represented by the managing director Cathleen Metzke and the client.
1. The subject and duration of the order, the nature and purpose of the processing, the type of data and the categories of data subjects shall result from the [designation main contract] (hereinafter: "main contract") between the parties, to which this contract shall be annexed. The Order shall end upon termination of the Main Contract.
2. The handling of the Client's personal data (hereinafter: "the Data") shall be carried out exclusively within the framework of the agreements made and in accordance with the Client's instructions. The Client reserves a comprehensive right to issue instructions regarding the type, scope and procedure of data processing, which it may specify by means of individual instructions. The provisions of the main contract alone shall be decisive for the actual scope of the authority to issue instructions, which shall be limited to the functionalities regulated therein. The Customer shall immediately confirm verbal instructions in writing or by e-mail (in text form). Changes to the object of processing and procedural changes shall be mutually agreed upon and documented by the parties. The Contractor shall not use the data for any other purposes and shall in particular not be entitled to pass them on to third parties. Copies and duplicates shall not be made without the knowledge of the Customer. Exceptions to this are security copies, insofar as they are necessary to ensure proper data processing, as well as data that is required with regard to compliance with statutory retention obligations. The Contractor shall inform the Client immediately if it is of the opinion that an instruction violates data protection regulations. The Contractor shall be entitled to suspend the implementation of the corresponding instruction until it is confirmed or amended by the Responsible Party at the Customer.
3. Within the scope of this contract, the Customer shall be solely responsible for compliance with the statutory provisions of the data protection laws, in particular for the lawfulness of the transfer of data to the Contractor, for the lawfulness of the data processing and for the protection of the rights of the data subjects. The Customer shall inform the Contractor without undue delay if it discovers errors or irregularities in the results of the order with regard to provisions of data protection law.
4. The Contractor shall comply with the necessary technical and organizational measures in its area of responsibility in accordance with Art. 5 (1) and Art. 32 DS-GVO and has designed its internal organization in accordance with data protection requirements.
5. the Contractor shall ensure compliance with the following obligations:
a) The written appointment - to the extent required by law - of a data protection officer.
b) The written commitment to confidentiality and instruction about the special data protection obligations resulting from this order as well as the existing instruction or purpose limitation of all persons at the Contractor who can access the data according to the order, unless they are already obligated to confidentiality by virtue of law or professional law.
c) The appropriate support of the Customer in fulfilling its obligation to respond to requests from data subjects under Chapter III of the GDPR.
d) The appropriate support of the Customer in ensuring the security of the processing (Art. 32 GDPR).
e) The appropriate support of the Customer in notifying personal data breaches to the supervisory authority (Art. 33 GDPR) and in notifying the persons affected by personal data breaches (Art. 34 GDPR).
f) The appropriate assistance of the Principal in data protection impact assessments (Art. 35 DS-GVO) and in any prior consultations with the competent data protection supervisory authorities (Art. 36 DS-GVO).
g) The submission of the information required under Art. 30 (2) DS-GVO.
h) The immediate notification of violations in the Contractor's area of responsibility against statutory provisions for the protection of data or against the stipulations made in this Agreement (Art. 33 (2) of the GDPR).
i) The immediate information of the Client about control actions and measures of the competent authorities with regard to the processing of the data.
The Contractor shall only correct or delete the data or restrict the processing in accordance with the Client's instructions. Insofar as a data subject should contact the Contractor directly in this regard, the Contractor shall forward this request to the Customer without delay. The Contractor shall only provide information with the prior written consent of the Customer.
7. The Customer agrees that the Contractor may subcontract to third companies for the performance of its contractual services. When subcontracting, the contractual agreements between the Contractor and the subcontractor shall be designed in such a way that they comply with the requirements regarding data protection and data security between the contracting parties of this Agreement. The Contractor shall inform the Customer of any intended change with regard to the involvement of new subcontractors or the replacement of previous subcontractors, giving the Customer the opportunity to object to such changes.
8. The Customer may, after timely written notification for inspection purposes, inspect the Contractor's premises during normal business hours without disrupting operations to ensure that the measures taken to comply with the technical and organizational requirements of the laws on data protection relevant to the commissioned processing are adequate. The Contractor is obligated to tolerate the inspections of the Client pursuant to this Agreement, to provide the necessary cooperation and to provide the Client, upon written request and within a reasonable period of time, with the information required to perform a comprehensive inspection of the order.
9. The processing of data by the Contractor is geographically limited to the European Union (EU) and the signatory states to the Agreement on the European Economic Area (EEA). The transfer of data by the Contractor to a recipient located outside the EEA is only permitted under the conditions of Art. 44 et seq. DS-GVO and requires the separate prior written consent of the Client.
10. Subject to deviating agreements and legal or statutory obligations, the Contractor shall be obligated after the end of the contract to return data carriers provided to it to the Client without undue delay and to securely delete data provided to it in connection with the order and not yet deleted.
11. In the event of any conflict between this Agreement and the Master Agreement, the provisions of this Agreement shall prevail if and to the extent that such provisions are the
Processing of the data concern.
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