Terms of use for operators

culture4life GmbH | luca Terms for Operators
‍May 2024

General | Scope
1. These luca Terms for Operators (“Terms”) apply to all contracts between culture4life GmbH, Mörikestraße 67, D-70199 Stuttgart (“luca”) and users who are entrepreneurs and not consumers (“Operators”) and to whom luca grants access to the luca Locations App, a software offered as software as a service (“luca Locations App”), including all associated websites, platforms, services, applications and features (collectively “Services”). The Services are intended in particular for the digitization of Operators’ processes and efficient interaction of Operators with their customers (“Customers”).
2. These Terms shall govern each ordering document or any online, email or in-app ordering process that references these Terms. Each order incorporates these Terms and constitutes a separate contract with respect to the Services to be provided under such order (“Service Contract”).
3. No civil law partnership or other company, employment, service or commercial agency relationship is established by a Service Contract.
4. These Terms shall be deemed confirmed by Operators at the latest when Operators use the Services. These Terms also apply to future contracts between luca and Operators without luca having to refer to them in each individual case.
5. These Terms apply to the exclusion of all other terms. Deviating, conflicting or supplementary general terms and conditions shall only become part of the Service Contract to the extent that luca has agreed to them in writing.
6. Where the terms ‘written’, ‘in writing’ or similar are used in these Terms, these refer to the ‘written form’ within the meaning of § 126 of the German Civil Code (BGB). The electronic exchange of copies of handwritten signed documents and documents with a simple electronic signature shall be sufficient in this respect. Unless expressly stipulated otherwise in these Terms, the exchange of simple e-mails shall not be sufficient.
7. All notices and declarations that Operators make to luca, especially notices of termination and setting of deadlines, must be made at least in text form, unless specified otherwise in these Terms.
Services | Operator Account | Trial Period
1. luca grants Operators access to the Services in accordance with the respective Service Contract.
2. Individual Services may be subject to a fee and may require Operators to register for the digital payment solution luca Pay (cf. Clause 5).
3. Some Services may only be used through a dedicated free Operator account that must be set up by Operators by providing certain information (“Operator Account”).
4. To the extent that luca offers Operators the use of fee-based Services for a free trial period, such trial period shall automatically transition into a paid subscription to use the respective Services upon its expiration, unless terminated by luca or the respective Operators prior to such transition.
5. luca may downgrade, restrict or otherwise modify the scope and/or content of any Services that are provided free of charge at any time and without prior notice. Subject to the provisions in Clause 18, luca shall have no guarantee, compensation, maintenance, support or availability obligations for any Services that are provided free of charge.
6. luca may use subcontractors at any time to fulfill its contractual obligations.
Rights of Use | Usage Restrictions
1. In accordance with the Service Contract, luca grants Operators a non-exclusive, non-transferable, non-sublicensable right to use the Services during the contract term. The Services are offered as currently described on luca’s website including the frequently asked questions (FAQ) section and/or a service description attached to the order, if applicable (“Documentation”).
2. Operators shall not (and shall not permit third parties to), directly or indirectly: (a) sublicense, transfer, distribute, share, or otherwise generate revenues from the Services; (b) copy the Services to a public or distributed network; (c) decompile, reverse engineer, disassemble, or otherwise attempt to derive source codes, object codes or underlying ideas, know-how, or algorithms or other functional mechanisms of the Services, except to the extent permitted under mandatory law; (d) modify, adapt, translate or create derivative works based on the Services (except to the extent permitted by luca or approved within the Services); (e) modify proprietary notices that appear in the Services or parts thereof; (f) use the Services in violation of applicable laws and regulations or outside the license scope described in this Clause 3; (g) use the Services to (i) store, download, or transmit infringing, libelous or otherwise unlawful or prohibited material or malicious code or malware, or (ii) engage in phishing, spamming, denial-of-service attacks, or other fraudulent or criminal activities; (iii) interfere with or disrupt the integrity or performance of third-party systems or the offerings or data contained therein; (iv) attempt to gain unauthorized access to the Services or luca’s systems or networks; or (v) conduct or commission penetration tests, vulnerability scans, or other security assessments.
General Obligations of Operators
1. Operators may only use the Services in full compliance with all applicable laws and regulations as well as the Documentation.
2. Operators registered for luca Pay shall proactively inform their Customers about the option to make payments to the Operators via luca Pay.
3. If Operators provide Customers with demarcated areas for the consumption of their products such as tables, Operators shall place a QR code generated by the luca Locations App in each of these areas and shall ensure at all times that the areas specified in the Operators’ cash register system always match the QR codes.
4. Operators shall procure, implement and maintain at their own expense technical devices and systems as well as related additional services that are necessary to connect to, access to or use the Services and any rental items by Operators. This applies in particular to hardware, software, servers, operating systems, cash register systems, networks, telecommunications, power supply and mobile devices (collectively “Technical Equipment”). luca’s requirements for the Technical Equipment can be viewed in their current version on luca’s website.
5. The security of the Technical Equipment and any use of the Technical Equipment known or unknown to Operators is the Operators’ sole responsibility.
6. Operators alone are responsible for the content of all data displayed, uploaded, stored, exchanged or transmitted by Operators using the Services (collectively “Operator Data”). luca cannot control the information entered by Operators while using the Services and cannot guarantee the accuracy of this information.
7. luca may, without prior notice and without liability, investigate any alleged violations of the Service Contract including these Terms by Operators and take any technical measures against Operators that luca deems appropriate to remedy such violations. Such measures include restricting, suspending or terminating Operators’ access to the Services.
8. Operators shall ensure that the information stored by them in the Services is always up-to-date and correct. In the event of unauthorized use or suspected security breach or misuse of the Services, Operators shall immediately inform luca thereof. luca reserves the right to verify and validate the accuracy of all stored information.
9. Operators shall report any disruptions of the Services immediately after becoming aware of them, at the latest on the following working day, to luca and shall include in such report comprehensible and detailed information, specifying all information useful for any error detection and error analysis. Operators shall support luca to a reasonable extent in identifying and remedying errors that may occur.
Special Provisions for Digital Payments (luca Pay)
1. To the extent agreed, Operators may use the digital payment solution luca Pay in accordance with the Service Contract and these Terms (“luca Pay”).
2. Certain services related to the processing of payments within luca Pay are not provided by luca but by payment service providers with whom luca cooperates in this regard. The use of such services may be subject to additional and separate terms and conditions of the respective payment service providers.
3. Operators may not use luca Pay to offer goods, services and other products (a) that may not be offered in or from a country due to applicable national regulations of that country (e.g. drugs, other illegal substances and weapons); or (b) that are restricted or excluded according to the terms and conditions of the respective payment service provider (e.g. financial products, (online) betting and pharmaceutical products). For the use of luca Pay in connection with other Services (including in the case of refunds and chargebacks), Operators shall pay transaction-based fees in accordance with the applicable luca Pay Fee Schedule (“Charges”).
4. The Charges set out in the luca Pay Fee Schedule represent uniform fees that include all costs for the use of luca Pay in connection with other Services (including with respect to card payments and including interbank fees), unless expressly stipulated otherwise in these Terms.
5. In the event of a change of significant cost factors, luca shall be free to increase the fees applicable for Operators during the contract term at its reasonable discretion, provided that the change is reasonable for Operators taking into account the interests of luca. This applies in particular in the event of changes in the price-relevant costs incurred by luca. In addition to the Charges, in the event of refunds and chargebacks, Operators shall bear those costs imposed on luca by the respective payment service providers in connection with such processing.
6. Operators commission luca to transmit instructions to the involved payment service providers in accordance with the respective terms and conditions for the withholding or deduction of Charges and Service Fees and their payout (in particular to an e-money account maintained by the respective payment service provider for luca).
Special Provisions for luca Terminals and luca Link Devices
1. To the extent agreed, luca provides Operators with mobile payment devices for authorizing and processing card payments (“luca Terminals”) and/or network devices for integration with existing cash register systems (“luca Link Devices”) for rental in accordance with the Service Contract and these Terms (“Rental Items”). The modalities for calculating the monthly rent are set out in the luca Pay Fee Schedule.
2. Certain services related to the processing of payments via luca Terminals are not provided by luca but by payment service providers with whom luca cooperates in this regard. The use of such services may be subject to additional and separate terms and conditions of the respective payment service providers.
3. The Rental Items remain the property of luca. Operators shall not pass on, resell, lease, allow third parties to use or encumber the Rental Items with a lien. Operators are fully liable for the actions and omissions of third parties. Interventions by creditors, especially in the case of seizures, must be reported to luca without delay. Any costs incurred by luca for an intervention shall be borne by Operators.
4. Operators shall use and operate the Rental Items at their own expense. They shall treat the Rental Items with care and use them only for their intended, customary use in accordance with the respective instruction manuals. In the event of damage, impairment or loss of Rental Items, Operators shall inform luca thereof without delay.
5. Operators may not move the Rental Items to a location other than the originally agreed location of use, unless luca has given its prior written consent. If a permitted or unauthorized change of location impairs the provision of maintenance and support services (cf. Clause 11), luca is entitled to demand a reasonable modification of these maintenance and support services.
6. The Rental Items will be shipped by luca to Operators at Operators’ expense and risk, with the choice of the specific means of transport being at luca’s discretion.
7. Operators shall inspect the Rental Items for apparent defects (including transport damage) upon delivery and immediately notify luca of such defects.
8. Operators shall immediately notify luca in writing (e-mail sufficient) of any defect that becomes apparent within the rental period. Rental Items shall be deemed defective to the extent that their use for processing payments is no longer possible. If Operators fail to give notice, they shall compensate luca for the damage resulting therefrom.
9. luca may at any time, after prior notice with reasonable notice period, inspect the Rental Items. luca shall perform necessary repairs to the Rental Items itself or through third parties. This shall be done, at luca’s option, by replacing the Rental Items or by replacing or repairing individual parts of the Rental Items.
10. In the event that Operators do not put the Rental Items into operation, discontinue their use or do not achieve a total monthly turnover as specified in the luca Pay Fee Schedule with the Rental Items, luca is entitled to invoice Operators a flat monthly rental fee for providing the Rental Items, as described in more detail here.
11. In the event of termination of the Service Contract for Rental Items as well as in the event of a necessary replacement of the Rental Items due to a defect, Operators shall return the Rental Items to luca at their own expense and risk.
12. If Operators do not return the Rental Items to luca despite termination of the Service Contract for Rental Items and following the expiry of a reasonable period set by luca, luca is entitled to charge late fees in accordance with the luca Pay Fee Schedule. If luca does not receive the Rental Items from Operators within eight (8) weeks of termination of the Service Contract for Rental Items, luca may invoice Operators the full goods value of the Rental Item.
Special Provisions for Reservations
1. To the extent agreed, Operators will be able to receive reservation requests from Customers for certain services via the luca Locations App and confirm them in accordance with the Service Contract and these Terms (“Reservation Feature”). The agreement on the reservation is concluded exclusively between Operators and Customers. In order to use the Reservation Feature, Operators must be registered for luca Pay.
2. In the event of a reservation request from Customers, an automatic check of the expected available capacities of Operators at the desired reservation time is carried out based on the information provided by Operators at the time of the respective request, in particular regarding existing reservations.
3. Operators alone are responsible for maintaining and updating the information they provide within the reservation system.
4. Operators may specify and quantify in their Operator Account certain reservation fees that will be charged by them to Customers (“Reservation Fee”). Operators may set deadlines to be observed by potential Customers for free cancellation of reservations at their own discretion in their Operator Account. The modalities of the luca Terms for Users for withholding and refunding Reservation Fees by Operators apply (accessible here).
Special Provisions for Digital Orders
1. To the extent agreed, Operators may participate in luca’s digital ordering system through the luca Locations App in accordance with the Service Contract and these Terms (“Ordering Feature”). Any order shall be subject to the service and product information provided by Operators, in particular digital menus and experience packages.
2. luca merely brokers the contract underlying the order, which is concluded exclusively between Customers and the respective Operators. In connection with the Ordering Feature, luca is not responsible for the conclusion of the contract underlying the order or for its successful fulfillment by the respective Operators.
3. Operators shall endeavor to generally accept orders from Customers and shall process accepted orders in a timely manner in accordance with such orders.
4. Operators alone are responsible for the content, accuracy and timeliness of the service and product information they store in luca’s digital ordering system, in particular digital menus, experience packages, opening hours and food information.
5. Operators shall take appropriate measures to ensure that they can be reached at the contact details they have provided, in particular by telephone and e-mail, during their opening hours. They shall take appropriate measures to ensure that they are promptly notified of orders and any changes and that such orders and changes are processed in accordance with these Terms.
6. Operators guarantee (garantieren) that they (a) comply with all applicable legal requirements, in particular price indications, legal notice obligations, consumer law information obligations, and food law notification and declaration obligations in connection with their products (e.g. information about any additives that may trigger allergies and/or intolerances) in the design of their offerings and acceptance of orders; and (b) have all official permits for the distribution of services and products through the Ordering Feature.
7. Operators alone are responsible for promptly receiving any inquiries and complaints regarding Operators’ offerings, related orders or contracts.
8. Operators shall immediately inform luca of any orders, investigations and proceedings by an authority insofar as they concern Operators or their employees and they are related to the distribution of services and products through the Services.
9. To the extent that luca informs Customers about a revocation right with regard to the Ordering Feature, this is done exclusively in the name of Operators. luca does not guarantee to Operators that a contract underlying an order will not be revoked by Customers.
Special Provisions for Hotel Check-Ins
1. To the extent agreed, Operators may participate in the check-in system provided by luca via the luca Locations App in accordance with the Service Contract and these Terms (“Check-In Feature”). As part of the Check-In Feature, Customers are able to digitally check in as guests in Operators’ hotels and Operators are able to confirm such check-in. In order to use the Check-In Feature, Operators must be registered for luca Pay.
2. As part of the Check-In Feature, luca provides an input mask in which Customers can enter their data required for carrying out the check-in (in particular contact details, ID data, copies of the ID document, address, billing data, credit card information). However, Operators alone are responsible for checking and ensuring that by querying Customers’ data via the input mask, they comply with their legal obligations, in particular pursuant to applicable registration laws and data protection laws.
3. As part of the Check-In Feature Customers are also able to make payments to Operators via luca Pay.
4. Operators alone are responsible for verifying the accuracy of the data entered by Customers in accordance with Clause 2. luca does not carry out any such verification.
Special Provisions Loyalty Program for Service Staff
1. To the extent agreed, Operators may collect loyalty points for their employees in accordance with the Service Contract and these Terms (“Program”).
2. Under the Program, luca provides a bonus in the form of loyalty points, in an amount previously determined by luca (“Bonus”) on top of any tips received by Operators’ employees (“Employees”) from Customers paying via luca Pay in accordance with this Clause 10.
3. The corresponding modalities of the form, use and validity of loyalty points are determined exclusively subject to the luca Terms for Users, which are accessible [here].
4. The Bonus is intended for distribution to Employees. Only Employees specified by Operators in the respective Operator Account who are working for Operators and have an activated luca User Account within the meaning of the luca Terms for Users are entitled to receive a Bonus in accordance with the Allocation Formula as specified by Operators (cf. Clause 8) (“Beneficiaries”).
5. luca usually provides the Bonus immediately after Operators receive the respective tip and such Bonus is automatically transferred to the User Account of the Beneficiaries according to the Allocation Formula. Any loyalty points received can be viewed and used by the Beneficiaries in their User Account.
6. The maximum possible Bonus per received tip is a total of fifty thousand (50,000) loyalty points (“Maximum Bonus”).
7. To the extent that Operators reimburse the respective Customers for a tip, all loyalty points provided by luca as a Bonus on top of such tip will automatically expire.
8. Operators shall specify the Employees working for them as potential Beneficiaries in their Operator Account and further specify in their Operator Account according to which ratio any Bonuses from luca are to be allocated among these Employees (“Allocation Formula”). Operators shall endeavor to establish a fair allocation ratio where possible, whereby in case of more than four specified Employees, a maximum of 25% of a Bonus should be allocated to any given Employees and in the case of less than four but more than one specified Employees, no more than 50% of a Bonus should be allocated to any given Employee.
9. Operators may only specify Employees actually employed by them in their Operator Account. Operators may not specify individuals who (i) are identical to the respective Operators, (ii) belong to the same household, and/or (iii) have a direct or indirect economic interest in the Operators’ undertaking.
10. Operators shall ensure through appropriate measures that their Employees do not make any payments via luca Pay with the intention of receiving loyalty points.
Maintenance and Support / Availability
1. Subject to the payment of the respective Service Fees by Operators, luca shall provide maintenance and support for the Services to the extent specified in the order.
2. “Support” means luca’s obligation to respond to Operators’ support requests regarding the Services by documenting and resolving issues and providing technical and non-technical assistance. “Maintenance” or “Maintain” means luca’s obligations with respect to the Services regarding error resolution, bug fixes, and the provision of updates and upgrades that luca makes generally commercially available at its sole discretion.
3. Support is provided by e-mail through locations@luca-app.de and via the chat on the luca website (luca-app.de/faq) as well as by phone at +49 30 221 838 555, each Monday through Friday from 9:00 a.m. to 5:00 p.m. (CET), except on public holidays in the state of Berlin, Germany.
4. luca shall make commercially reasonable efforts in line with applicable industry standards to maintain the Services in a manner that minimizes disruptions and interruptions.
5. Operators may report any errors to luca at locations@luca-app.de as well as by phone at +49 30 221 838 555 and via WhatsApp.
6. Subject to the payment of the fees listed in the order by Operators, luca shall make reasonable efforts to ensure that the Services are available to Operators via the Internet, but not less than 99.5% per year (based on twenty-four (24) hours per day and seven (7) days per week), excluding temporary unavailability due to scheduled or unscheduled maintenance as well as unavailability for reasons beyond luca’s control. luca shall make reasonable efforts to notify planned interruptions of the Services in advance in text form.
7. luca is not obliged to provide customer-side access to the Services, such as Internet access.
Payment of Service Fees and Charges
1. Operators shall pay the agreed fees for the Services (“Service Fees”) as well as the agreed Charges.
2. luca is entitled to change the Service Fees and Charges with effect for the subsequent Renewed Term, at least sixty (60) days prior to the expiration of the Initial Term or the end of the then-current Renewed Term.
3. The Service Fees and Charges are exclusive of all applicable taxes, fees and other financial obligations imposed by a governmental authority, including value added tax, goods and services tax, sales tax, as well as indirect and transaction-related taxes that are incurred and/or levied in connection with transactions via luca Pay and/or the use of the Services, unless expressly stipulated otherwise in these Terms. Operators alone shall be responsible to determine which taxes apply when using the Services and to comply with their reporting and other obligations.
4. luca invoices Operators on a monthly basis for Service Fees and Charges incurred based on an invoice. Full payment for invoices must be received by luca within fourteen (14) days of the date of invoice issuance. luca may commission third parties to carry out the invoicing. Operators shall immediately review all invoices from luca regarding their correctness and completeness. Complaints shall be made exclusively via the luca Locations App within a period of twenty-eight (28) days after receipt of the invoice by Operators. Failure to make a timely complaint shall be deemed approval of the invoices, provided that luca has expressly notified Operators in the relevant invoice that failure to make a complaint within twenty-eight (28) days of receipt of the invoice shall be deemed approval of the invoice. However, luca shall remain entitled to correct inaccurate invoices even after the expiry of this period.
5. Following notice in text form, luca may suspend Operator’s access to the Services in accordance with § 320 German Civil Code if payments are not received by luca within thirty (14) days of the due date.
6. In addition to the Service Fees and Charges, Operators shall also be responsible for all costs, penalties, liabilities, Service Fees, levies, expenses and/or imposed penalties imposed on Operators, luca or third parties due to actions or causes related to the use of the Services that fall within the responsibility of Operators. Operators shall therefore compensate luca (at luca’s option) or indemnify luca for all such amounts incurred by luca.
Term | Termination
1. The Service Contract commences on the date specified in the order (“Contract Commencement”) and shall remain in effect for the initial term of the Service Contract as specified in the order (“Initial Term”). The Initial Term shall automatically and continuously renew for additional periods equal in duration to the Initial Term, unless otherwise agreed in writing (each a “Renewed Term”), unless either party requests termination of the Service Contract at least (30) days prior to the end of the then-current term.
2. The ordinary termination of the Service Contract prior to the end of the Initial Term or a Renewed Term shall be excluded for both luca and Operators. The right to extraordinary termination of the Service Contract for good cause shall remain unaffected. Such good cause exists in particular if either party materially breaches any of the provisions of the Service Contract and such breach is not cured within thirty (30) days after receipt of a notice of such breach in text form. Such good cause also exists for luca if (a) Operators are in default of payment for longer than forty-five (45) days; (b) Operators violate the usage restrictions under Clause 2; (c) Operators violate the product restrictions under Clause 5.3; or (d) Operators cease making their due payments or a significant deterioration in their asset situation occurs.
3. When the termination of the Service Contract or the expiration of its Initial Term or Renewed Term takes effect, luca may suspend Operators’ access to the Services and delete all Operator Data (if any) that remains in luca’s possession after a period of thirty (30) days unless luca is subject to any legal retention obligations. Operators alone shall be responsible for removing Operator Data prior to any suspension. Clause 3remains unaffected.
Proprietary Rights | IT Security | Updates | Reference Mention | Feedback
1. luca and its providers are and remain the owners of all proprietary rights, including copyrights, database rights, patents, trade secrets, trademarks and all other intellectual property rights and technical solutions to and in connection with the Services. Operators acknowledge that the rights granted under a Service Contract do not grant Operators any ownership rights in the Services.
2. All rights to the Operator Data and to data based on or derived from the Operator Data remain with Operators. Operators grant luca a non-exclusive, non-transferable, sublicensable, worldwide and unlimited right and license to use the Operator Data exclusively to the extent necessary for the provision of the Services, and, in case of product images relating to Operators, for any other purposes. Operators guarantee (garantieren) that they have obtained all rights and consents necessary for luca to use the Operator Data in accordance with these Terms.
3. luca shall take reasonable measures to ensure that the security of the Services meets applicable industry standards.
4. luca reserves the right to make new versions and updates to the Services at any time in accordance with applicable law, in particular changes to the design, operating procedure, technical specifications, systems and other features of the Services.
5. Operators agree that luca references them as cooperation partners of luca on luca’s websites, marketing campaigns and mobile applications, describing their business/company name and business address as well as by using any product and location images of Operators.
6. Operators may occasionally submit to luca suggestions for new features or functionalities of the Services or provide other feedback on the Services. luca shall be free to take such suggestions or feedback into consideration. Operators grant luca a royalty-free, fully paid-up, perpetual, sublicensable right to use such feedback for any purpose.
Confidentiality
1. Operators and luca are aware that they have disclosed or may disclose to each other business, technical or financial information relating to their business (the “Confidential Information”). Confidential Information of luca includes non-public information about features, functionality and performance of the Services. Confidential Information of Operators includes all Operator Data.
2. Operators and luca each undertake reasonable efforts to protect the Confidential Information of the other party and not to use or disseminate such confidential information to third parties (except when providing the Services or as otherwise permitted under these Terms). The aforementioned obligation ceases to apply five (5) years after the disclosure of such information as well as with respect to information which the receiving party can prove that (a) is or becomes generally accessible to the public; or (b) was already in the possession of the receiving party prior to its receipt; or (c) was lawfully made available to the receiving party by third parties without legal restrictions; or (d) was developed independently and without the use of Confidential Information; or (e) it be disclosed due to legal requirements.
3. luca may collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (in particular information concerning the Operator Data), and luca shall be free, during or after the end of the Service Contract, to use or have such data and information used to improve and further develop the Services, as well as for the purpose of further developments, diagnostic and corrective measures in relation to the Services and other offerings of luca, but only in aggregated or otherwise anonymized form and only in a manner that is not directly detrimental to Operators.
Data Protection
1. Operators and luca shall at all times comply with the requirements of applicable data protection law, in particular the European Union General Data Protection Regulation.
2. The processing of personal data by luca in connection with the Services is further explained in luca’s Privacy Policy, which can be accessed here.
Limited Warranty
1. Operators are aware of the essential functions and features of the Services. It is the responsibility of Operators to verify that the description of the Services as set forth in the Documentation meets their needs and wishes. The scope, type and quality of the goods and services to be delivered or provided by luca are determined by these Terms, the order and the Documentation. Other information only forms part of the Service Contract if Operators and luca have expressly agreed thereto in writing. Product descriptions, illustrations, test programs, etc. merely represent specifications of Services, but do not constitute guarantees (Garantien) or agreements on certain specifications (Beschaffenheitsvereinbarungen). In order to be valid, an agreement on a guarantee must be confirmed by a director of luca in writing.
2. luca warrants (gewährleistet) that the Services will, in all material respects, conform to the functionality de-scribed in the then current Documentation for the applicable Services version. In case of a breach of this warranty luca shall be required to use commercially reasonable efforts to modify the Services to conform in all material respects to the Documentation, and if luca is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, Operators may terminate the Service Contract upon written notice and receive a pro-rata refund of the unused fees which have been paid in advance (if any) for unused access to the Services. In order to be eligible for the foregoing remedy, Operators shall notify luca in writing of any warranty breaches and Customer must have used and configured the Services in accordance with the Documentation. Any no-fault liability (verschuldensunabhängige Haftung) of luca for the existence of initial errors (anfängliche Mängel) under § 536a German Civil Code shall be excluded. Operator’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 18.
Limitation of Liability
1. luca’s liability is unlimited for (a) injury to life, body or health caused by luca, luca’s legal representatives or vicarious agents; (b) damage caused intentionally or by gross negligence by luca, luca’s legal representatives or vicarious agents; (c) damage due to the absence of a guaranteed quality; and (d) claims under the German Product Liability Act (ProdHaftG).
2. luca shall be liable for damage resulting from the breach of cardinal obligations by luca, luca’s legal representatives or vicarious agents. Cardinal obligations are the obligations the fulfilment of which is essential for the proper execution of the Service Contract and on the compliance with which Operators regularly rely and may rely. If the breach of cardinal obligations is caused by simple negligence on the part of luca, luca’s legal representatives or vicarious agents, luca’s liability shall be limited in amount to the amount that was foreseeable for luca at the time of the respective performance.
3. Subject to Clauses 1 and 18.2, luca shall not be liable for damage resulting from the breach of obligations that do not constitute cardinal obligations and that are caused by simple negligence on the part of luca, luca’s legal representatives or vicarious agents.
4. luca shall not be liable for the deterioration, loss or destruction of Rental Items where culpably caused by Operators.
5. luca shall only be liable for data loss up to an amount that covers the typical costs for restoration that would have been incurred if Operators had made proper and regular data backups.
6. Subject to Clause 1, luca’s liability for damage arising out of or in connection with the Service Contract, whether in contract, tort or otherwise, shall be limited to an amount equal to 150% of the total fees paid by Operators in the twelve (12) months immediately preceding the event giving rise to liability (plus fees payable).
7. Any more extensive liability of luca not covered by this Clause 18 is excluded on the merits.
Entire Agreement | Severability Clause | Revisions
1. The Service Contract including the order and these Terms constitutes the entire agreement between Operators and luca with respect to its subject matter and supersedes and excludes all prior written, text form or oral negotiations, arrangements, agreements, practices or understandings between the parties with respect to its subject matter.
2. Should any provision of the Service Contract including the order and these Terms be or become invalid or void in whole or in part, the validity of the remaining provisions shall not be affected thereby. In this case, the invalid or void provision shall be replaced by a provision that comes closest to what the parties would have agreed in a legally permissible manner in accordance with the meaning and purpose of the original provision and the Service Contract if they had recognized the invalidity or voidness of the original provision. If the invalidity or voidness of a provision is based on a measure of performance or time (period or deadline) specified therein, a provision with a legally permissible scope that comes closest to the original scope shall take its place. The foregoing also applies to any unintended gap in the Service Contract including the order and these Terms.
3. Amendments or additions to the Service Contract must be made in text form. Agreements to deviate from this text form requirement or to waive it entirely must be made in writing. Clause 4 remains unaffected.
4. luca may amend and/or update these Terms for existing Service Contracts with future effect if this is necessary for technical, economic or legal reasons and insofar as this does not constitute a change affecting the basis of the legal relationship between luca and Customers and which would be equivalent to the conclusion of a new contract. Any revision of these Terms will be announced to Operators in text form at least six (6) weeks before its intended effective date. Operators may either approve or object to the revision before their proposed effective date. The revision shall be deemed accepted by Operators unless they object to the revision before its proposed effective date. In the event of a timely objection by Customers, the Service Contract shall terminate as of the proposed effective date of the revision. The use of the Services will then no longer be possible. luca shall explicitly inform Operators thereof in the corresponding announcement.
Applicable Law | Place of Jurisdiction
1. Each Service Contract and all (contractual or non-contractual) disputes or claims arising out of or in connection with the Service Contract or its subject matter or its conclusion shall be governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
2. The exclusive place of jurisdiction for all disputes arising out of or in connection with the Service Contract and these Terms is Stuttgart (Germany).

culture4life GmbHStuttgart District Court, Deutschland, HRB 784499