Appendix l

Terms & Conditions

for the Provision of Conversational Commerce Software version dated February 19th, 2024.
[To review our current Terms and Conditions, please refer to the updated version.]

We, charles, have updated our Terms & Conditions effective 19 February 2024. For existing Clients, these updates will take effect upon expiry of a period of 15 days after receipt of notification and continued Platform use; or upon individual acceptance. For new Clients, these updates shall apply immediately upon acceptance or commencing Platform Subscription, whichever occurs first.

Introduction

Charles GmbH, Gartenstraße 86-87, 10115 Berlin, Germany, registered with the Commercial Register of the Berlin (Charlottenburg) District Court under HRB 203739 B (“Charles” or "Platform Operator"), offers businesses within the meaning of Section 14 of the German Civil Code ("BGB") (the "Client(s)") a Software-as-a-Service based platform solution (the “Platform”) to empower their brands for next generation conversational commerce including marketing, sales, and service capabilities for the Client’s products or services via online messaging channels (e.g., WhatsApp) towards customers or users of those online messaging channels (the “End Customer(s)”) in accordance with the provisions of these Terms & Conditions.

BY ACCEPTING THE APPLICABLE ORDER FORM (the “Commercial Agreement”) FOR A DEFINED SUBSCRIPTION OF PLATFORM AND RELATED SERVICES (the “Platform Subscription”) OR BY USING THE PLATFORM OR ANY OF ITS RELATED SERVICES, CLIENT ACCEPTS THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS APPLY BETWEEN THE CLIENT AND THE PLATFORM OPERATOR (AS IDENTIFIED IN THE COMMERCIAL AGREEMENT)

1.     Services of the Platform Operator

1.1 Scope of Services. The Platform Operator shall provide the Client with the Platform for enabling commercial marketing, sales and/or service activities via selected online messaging channels (the “Selected Messaging Channels”) as stipulated in the Commercial Agreement(s) for a fixed period of Platform Subscription (the “Subscription Period") to be used in accordance with the Data Processing Addendum, these Terms and Conditions and all its Annexes (jointly “the Terms”). Provision is due at the router exit of the data center in which the server with the software is located (the "Transfer Point"). This includes provision of the Platform with an interface to send and receive messages from End Consumers, the required computing power, the necessary storage space for data as well as the Success and Support Services stipulated in Section 1.2 (jointly the “Services”). The concrete scope of services results from the Commercial Agreement.

1.2 Success and Support Services. As part of the Platform Subscription, the Platform Operator shall support the Client and its Authorized Users in their efficient use of the Platform through a dedicated Customer Success and Support Team (the "Success and Support Services"). The content and scope of the Success and Support Services may change from time to time at the Platform Operator's discretion, unless contractually stipulated in the Commercial Agreement. If not already regulated or excluded in the Commercial Agreement, the Platform Operator reserves the right to charge a separate fee for the "Support and Success Services" at any time for the future. Being services within the meaning of the Governing Law, success of efforts of the Success and Support Services is not owed. The Success and Support Services are an integral part of the Platform Subscription and are subject to these Terms & Conditions. If the Platform Subscription ends, the right to use the Success and Support Services also ends.

1.3 Professional Services. Where the Parties have agreed in the Commercial Agreement or a separate Statement of Work on the provision of professional services beyond Success and Support Services, in particular with regard to the development or modification of custom-build platform features or integrations, separate Professional Service Terms shall apply in addition and with priority as an annex to these Terms and Conditions.

1.4 GenAI Features. If the Client activates and uses features offered by the Platform Operator based on Generative Artificial Intelligence capabilities (the “GenAI Features”), the supplementary GenAI Service Terms shall apply as an Annex to these Terms and Conditions. At the same time, the Client accepts the integration of the respective GenAI service provider as a further subprocessor under the Data Processing Addendum. In offering GenAI Features, the Platform Operator does not guarantee that GenAI Features will continue to be offered in their current form or at all, and the Client cannot claim the provision of GenAI Features under these Terms and Conditions.

1.5 Access Point. In order for the Client to be able to use the Platform, the Client and its duly registered users (the “Authorized Users”) need their own access to the Internet and, via this, the possibility of accessing the Platform at the Transfer Point. The Platform Operator does not owe the establishment and maintenance of the Internet connection between the Client's IT infrastructure and the Transfer Point.

1.6 General Availability. The Platform shall generally be accessible 24 hours a day with the exception of necessary maintenance work and/or other downtimes. The general availability of the Platform is around 99%. In terms of time, availability for the duration of a contractual year means the ratio of the period during which the Client was able to use the entire core functionalities at the Transfer Point (the "Usage Period") to the length of the entire contractual year. The Usage Period also includes the period of planned maintenance work and of cases of malfunctions that are beyond the Platform Operator's control. If agreed, further details regarding availability and performance shall be regulated in a separate annex to these Terms and Conditions (“Service Level Agreement”).

1.7 Third-Party Dependencies. In terms of its features, functionality, availability and performance the Platform is dependent on third-party services including Selected Messaging Channels (like WhatsApp), communication interface services, cloud service providers (both for data hosting at rest and for data in transit using the CloudAPI service for WhatsApp messaging), and any additional integrated services (the “Integration Partners”, e.g., shop or CRM systems), referred to jointly as the “Third-Party Services”. Should the legal, operational, or technical design of a Third-Party Service change in a way that this negatively affects the Platform's scope of services, features, functionality, availability, security, confidentiality or performance, any such shortcoming or deviation should not be considered a defect or non-performance of the Platform Subscription or Support and Success Services under these Terms and Conditions. Rather, in such a case, the Platform Operator is entitled to change or discontinue affected services, features or functionalities and offer alternative Third-Party Services to the extent legally, technically and operationally feasible. The Client may not derive any right to terminate the Platform Subscription for cause based on any temporary or permanent unavailability or other shortcoming of a particular Third-Party Service.

1.8 Unavailability of Selected Messaging Channels. If access to a Selected Messaging Channel (e.g., WhatsApp) or a communications interface service is blocked or otherwise not available for a material period of time, the Platform Operator may provide the Services based on another access or online messaging channel option, which in turn shall be notified to the Client in due course. The Client is responsible for informing their End Customers of any new messaging option.

2.     Admission and Access to the Platform

2.1 Prior Admission. Prerequisite for the use of the Platform is the admission by the Platform Operator. The Platform is only available to Clients who are entrepreneurs within the meaning of Section 14 BGB, i.e. natural or legal persons or partnerships with legal personality who or which, when entering into a legal transaction, act in exercise of their or its trade, business or profession. Private individuals or consumers within the meaning of Section 13 BGB are excluded as Clients. In general, there is no claim to admission or use of the Platform unless as agreed in the Terms for a defined Subscription Period. A Client or one of its’ Authorized Users is not entitled to register more than once for the Platform, although the Platform Operator may grant exceptions in individual cases on request.

2.2 User Access. Access and use of the Platform is only permitted for Authorized Users. Via the master login transmitted in the admission confirmation, the Client may select a number of Authorized Users within the threshold of user accounts included in the Platform Subscription, such as its’ internal and external employees or agents, granting them access to the Client’s Platform instance and configuring their user accounts and related permissions on the Platform. The Client guarantees that the information on Authorized Users and their accounts provided to the Platform Operator for admission is true and complete and undertakes to notify the Platform Operator immediately of any future changes to the information provided. In order to register and access the Platform, Authorized Users have to accept separate Terms of Use for Users and acknowledge receipt of the Data Privacy Notice for Users, as provided on the Platform.

2.3Withdrawal of Access. The Platform Operator is entitled to withdraw a Client's admission or block access of Authorized Users to the Platform, if
a) there is sufficient suspicion that the Client or one of its’ Authorized Users has violated these Terms & Conditions or the Terms of Use for Users provided on the Platform and accepted by an Authorized User; the Client may avert these measures if they dispel the suspicion by presenting suitable evidence at their own expense, but Platform Operator may in its own discretion temporarily suspend access until the suspicion is fully dispelled;
b) the Platform Operator has issued a termination of the Client’s Platform Subscription which has taken effect;
c) the Platform fees owed for Platform Subscription haven’t been paid for fourteen (14) days even after a prior reminder with a deadline to no avail;
d) the Platform Operator or its Subprocessors are required to comply with an order or regulation of a competent authority;
e) temporary suspension is required for upgrade or maintenance reasons in which case the Platform Operator shall attempt to give the Client reasonable notice;
f) the services of a Selected Messaging Channel provider (e.g., WhatsApp) are suspended;
g) Client or Authorized User is doing business with the Platform in a country that has been sanctioned or targeted with a trade embargo by competent bodies of the European Union (EU), an EU member state or the United States of America; or
h) WhatsApp or Meta have prohibited the use of or suspended access to the Client’ WhatsApp Business Account or Meta Business Account or an Unauthorized Usage or infringement or violation of the Special Client Obligations or of the WhatsApp or Meta Terms is apparent.

2.4 Protecting Login Credentials. All logins are individualized and may only be used by the respective authorized Client’s User. The Client is obliged to keep login and password of its Authorized Users strictly confidential and to protect them from unauthorized access by third parties. The Client shall instruct its Authorized Users accordingly. In the event of suspicion of misuse by a third party, the Client shall inform the Platform Operator of this immediately. As soon as the Platform Operator becomes aware of the unauthorized use, the Platform Operator shall block the access of any unauthorized users. The Platform Operator reserves the right to change the login and password of a Client; in such a case, the Platform Operator shall inform the Client of this immediately.

3.     Support

3.1 Support Cases. In the event of a deviation of the Platform from the contractual functions (a "Support Case"), the manner in which the deviation is reported shall be determined by the support facilities set up on the Platform. The scope of the support services may be based on specific Success and Support Services as stipulated in the Commercial Agreement or a separate Service-Level Agreement, if any.

3.2 Reporting Support Cases. When reporting a Support Case, the Client must provide a detailed description of the respective functional deviation so that the Platform Operator can eliminate the error as quickly and comprehensively as possible.

3.3 Additional Support Services. If required, Platform Operator and Clients can conclude separate agreements on support services that are not already part of the booked package (e.g. instructions, consulting services, technical services, training, development of special functions).

4.     Obligations of the Client

4.1 Contribution of the Client; proper equipment. The Client undertakes to establish and maintain the necessary remote data connection between the Transfer Point defined by the Provider and the Client's IT system in order to use the Platform and the associated Success and Support Services. The Client shall employ suitable hardware and communication equipment and shall ensure at all times, at its expense, that such equipment remains suitable to provide access to the Platform. The configuration of the Platform required for its use and of the Client's IT system is the responsibility of the Client; however, the Platform Operator offers to support the Client in setting up the Platform in accordance with the Commercial Agreement. The Platform Operator may offer to support the Client with Onboarding Sessions to register and use the Platform with the Selected Messaging Channels. If offered, the Client shall be required to actively participate in the onboarding sessions offered and complete the necessary onboarding steps through its Authorized Users as defined by the Platform Operator; otherwise, the Client is not entitled to claim that access to the Platform and its features including the Selected Messaging Channels is not properly established.

4.2 No Sharing of Services. The services of the Platform Operator may not be made available to third parties by the Client unless this has been expressly agreed by the Platform Operator and the Client. This does not exclude the use of external Authorized Users to support the Client with the use of the Platform.

4.3 Compliance with Laws and Unauthorized Usage. The Client undertakes – towards Platform Operator and the Selected Messaging Channel providers (like WhatsApp or Meta) – to comply with all applicable laws and regulations, including, but not limited to, regulations on data privacy, IT-security, e-commerce and export control, regarding its activities related to these Terms & Conditions. In particular, the Client shall, and shall ensure that its Authorized Users shall, refrain from any Prohibited Use under these Terms and Conditions and use the Platform in compliance with the Platform Operator’s and its service providers’ most recent policies on acceptable use as in force from time to time, including, if applicable, the WhatsApp and Meta Terms (any violation of these the “Unauthorized Usage”).The Client shall, and shall also ensure that its End Customers cooperate to this end, (i) ensure that for each transaction it performs via the Platform it has the prior consent of the recipient of that transaction and (ii) comply with any applicable law and regulation in respect to the services and offers provided to End Customers based on Services provided by the Platform Operator (the altogether referred to as “Special Client Obligations”). If the Client becomes aware of any Unauthorized Usage or an infringement of Special Client Obligations or of WhatsApp or Meta TermEQÜ#JO3A E1Ds, Client shall notify the Platform Operator immediately.

4.4 Foreign Markets. The Client acknowledges that the Platform has been initially developed for the EEA and UK market and that for instances where Client intends to use the Platform outside these markets and jurisdictions (the so-called “Foreign Markets”), the Platform will not necessarily meet all legal requirements or local laws and market practices, and the Client undertakes to review and address any those specific requirements under applicable local law in its own responsibility.

4.5 Reporting Malfunctions. The Client must report and explain functional failures, malfunctions, or impairments of the Platform to the Platform Operator immediately and in individual cases as specifically as possible.

4.6 Government Data Access Requests. The Client shall immediately inform the Platform Operator when receiving any notification or official communication from regulators, state authorities or similar bodies, in relation to the Client’s products or services which are based on the Platform and/or relating to WhatsApp Business Solution or any WhatsApp or Meta product or service, providing the Platform Operator with a copy of such notification or, at a minimum, with complete substantive information on same notification or communication.

4.7 Prohibited Use. The Client undertakes to solely use and ensure its Authorized Users solely use the Platform as laid down and permitted under these Terms and Conditions. In particular, the Client and its Authorized Users shall not use the Platform including related Success and Support Services, any Selected Messaging Channels or any integrated Third-Party Services as follows (the “Prohibited Use”): (i) Not use the Platform for personal, family or household purposes but solely for legitimate business activities and ensure all transactions and content comply with relevant laws, including consumer protection regulations, tax obligations, and any industry-specific legal requirements (“Professional Use”); (ii) refrain from any form of bullying, discrimination, or hateful conduct on the Platform, not engage in harassing, threatening, intimidating or predatory behavior, stalking or any other conduct that would be illegal or otherwise inappropriate, such as promoting violent crime, endangering or exploiting children or other persons, or coordinating harm, or transmitting or distributing any illegal content, but always interact on Platform and when using any Selected Messaging Channels respectfully and professionally (“Respectful Interaction”); (iii) never use or attempt to access or use another Client's account and only permit Authorized Users to use their of own duly registered accounts to access and use the Platform (“Authorized Use”); (iv) not impersonate or register on behalf of, or otherwise misrepresent an affiliation with, any person or entity, including not to commit fraud, piracy or any similar fraudulent activities or publish falsehoods or misleading statements via the Platform (“No Misrepresentation”); (v) not collect information from or about End Customers or any other Selected Messaging Channel users in an improper, unlawful or authorized manner, not in line with applicable laws and regulations, but collect any data lawfully such as by way of following the double opt-in procedure in line with applicable data protection regulations (“No Unlawful Use”); (vi) not interfere with, disrupt, negatively impact or inhibit the Platform's overall functionality and not damage, disable, overburden, or impair any of its functionalities or features or distribute viruses, corrupted data, or other harmful, disruptive, or destructive files or content but only use the Platform for its intended purposes and follow any instructions of the Platform Operator and a Selected Messaging Channel providers’ robots.txt file or any measures a connected messaging provider uses to prevent or restrict access to its services (“Intended Use”); (vii) avoid sending, distributing, or posting spam, unsolicited electronic messages, chain letters, pyramid schemes, or illegal or unauthorized communications through the Platform (Lawful Communications); (viii) not post, upload or share any content on the Platform that is unlawful, offensive, defamatory, obscene, pornographic, indecent, lascivious, lewd, harassing, hateful, ethnically or racially offensive, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or objectionable in our sole discretion; and not incite or instigate a criminal offense on or through use of the Platform (“Prohibited Content”); and (ix) not expose the Platform Operator, a Selected Messaging Channel provider or Third-Party Service provider whose service is connected to the Platform to any harm or liability (“No harm or liability”). The Platform Operator is entitled to immediately block any Prohibited Use including any offer to End Customers not in line with these Terms and Conditions on the Platform. The Platform Operator further draws attention to the legal provisions to combat illegal employment; the performance of services (including preparatory acts) that violate such provisions or similar local regulations is prohibited.

4.8 Ancillary Client Obligations. The Client has the following ancillary obligations under these Terms & Conditions:
a) support the Platform Operator to a reasonable extent as required to provide the Services as agreed in the Terms;

b) truthfully and completely describe the products and services offered to End Customers (including the full price including any applicable value added tax as well as delivery time and shipping conditions);

c) comply with all applicable statutory obligations including, without limitation, consumer protection regulations, including the granting of a right of withdrawal and the provision of a legal notice, insofar required by law, and to provide any necessary data protection information to End Customers in their offers;

d) determine for whether any taxes, levies and/or customs duties apply to the products and services offered and whether these are to be paid by Client;
e) set up and maintain the necessary data security and non-disclosure arrangements throughout the entire term of the Platform Subscription. This essentially refers to the careful and conscientious handling of logins and passwords, which must be kept secret, whereby the Client must ensure that their Authorized Users do the same;
f) immediately notify the Platform Operator of technical changes occurring in their area if they are likely to impair the provision of services or the security of the Platform of the Platform Operator;
g) carry out regular data checks themself or through a third party and;
h) reasonably cooperate in any potential investigation of attacks by third parties on the Platform or similar security incidents.

4.9 Protecting Platform Integrity. The Client undertakes to refrain from all measures which endanger, disrupt or disturb the functioning of the Platform, as well as not to access data to which they are not entitled. Furthermore, Client must ensure that their information and data transmitted via the Platform and posted on the Platform are not infected with viruses, worms or malicious code.

4.10 Sale of Products and Services. Products and services may only be offered and provided by the Client to its End Customers against a legally required proof which shall be included in the description of the products or services.

4.11 Proper Business Accounts. It is in the Client’s sole responsibility to create and maintain the required verified business accounts in full compliance with Selected Messaging Channel providers terms and adhere to their quality standards in order to use their services via the Platform.

5.     WhatsApp and Meta Terms

5.1 Precedence of WhatsApp and Meta Terms. The following special terms and conditions of WhatsApp and Meta (“WhatsApp and Meta Terms”) relate to the use of the WhatsApp Business Solution, an online messaging channel enabling businesses to communicate with customers or users through WhatsApp messaging, and the Meta platform services including the Meta Business Account and the Meta Cloud API service for hosting content transmitted through WhatsApp (the “CloudAPI”) (together jointly the “WhatsApp and Meta Services”). The WhatsApp and Meta Terms prevail over other provisions in Commercial Agreement and these Terms and Conditions in the event of conflict.

5.2 Duly Registered Accounts. To enable and use the WhatsApp Business Solution as Selected Messaging Channel, the Client needs to create at least one duly registered WhatsApp Business Account within its own Meta Business Account. To enable the WhatsApp and Meta Services including CloudAPI, the Client may further need to set-up additional accounts or activate features. The Client is required to provide necessary permissions of its WhatsApp Business Account to the Platform Operator depending on the features and services to be used. Setting up accounts connected with the Platform shall always be done in accordance with all applicable WhatsApp and Meta Terms governing the Client’s use of those accounts and services, in particular those outlined in Section 5.3.

5.3 Applicability of WhatsApp and Meta Terms. Before commencing use of the Platform and in order to continue Platform use in line with these Terms and Conditions, the Client undertakes that by accessing or using WhatsApp and Meta Services directly or indirectly, the applicable WhatsApp and Meta Terms shall govern the access and use of the Platform Subscription. In particular, the WhatsApp and Meta Terms, as updated from time to time, including, but without limitation, the WhatsApp Business Solution Terms (https://www.whatsapp.com/legal/business-solution-terms/), the WhatsApp Business Messaging Policy (https://www.whatsapp.com/legal/business-policy), the WhatsApp Business Terms of Service (https://www.whatsapp.com/legal/business-terms), and the Meta Terms for WhatsApp Business (https://www.whatsapp.com/legal/meta-terms-whatsapp-business). Meta is the distributor of the WhatsApp Business Solution and WhatsApp works with Meta to provide the services and features required to enable the WhatsApp Business Solution, including Facebook Business Manager and Facebook Developer as well as Cloud API. Consequently, the Meta Terms of Service (https://www.facebook.com/legal/terms), the Meta Commercial Terms (https://www.facebook.com/legal/commercial_terms) and the Meta Hosting terms for Cloud API (https://www.facebook.com/legal/Meta-Hosting-Terms-Cloud-API shall also apply, and the Client shall comply with all these WhatsApp and Meta Terms at any given time.

5.4 Updated Terms. Meta and WhatsApp reserve the right to change the WhatsApp and Meta Terms, policies, etc. as well as the location or source to obtain them at any given time. It is the Client’s responsibility to follow the changes that Meta and WhatsApp make in their terms and conditions or policies and make sure to comply with them.

5.5 Compliance with Terms. The Client undertakes to provide any Services relying on WhatsApp or Meta Services to its Authorized Users only on terms substantially similar to, and no less stringent than, the WhatsApp and Meta Terms. The Client further undertakes that it’s use of WhatsApp and Cloud API, including any Company Content transmitted, shall not violate any laws or third party rights, including intellectual property, privacy, or publicity rights and that it is the Client sole responsibility to determine respective legal obligations. With regard to health information, the Client acknowledges that neither WhatsApp nor Meta is a Business Associate or Subcontractor (as defined in the Health Insurance and Accountability Act (“HIPAA”)) and that Cloud API is not HIPAA compliant. Meta or WhatsApp has no liability for any such prohibited information, notwithstanding anything to the contrary in these Cloud API Terms.

5.6 Limitation of Liability for WhatsApp Services. The Platform Operator’s liability towards the Client with respect to the provision of the WhatsApp Business Solution Service is limited in the same way as the liability of Meta and WhatsApp is limited under the WhatsApp and Meta Terms and the Client shall indemnify and hold harmless the Platform Operator for any violation of the WhatsApp and Meta Terms in the same manner as set out in the WhatsApp and Meta Terms. The Client further acknowledges that the Platform Operator has no control over the content which passes through the WhatsApp Business Solution as Selected Messaging Channel of the Platform Operator and the Platform Operator does not examine any such content or the nature or the sources of the content. The Client shall be solely liable for such content. The Platform Operator shall not be liable for content or material transmitted by the Client or any of its Authorized Users relying on the WhatsApp Business Solution services of the Platform Operator, including but not limited to, mobile subscribers.

5.7 Protected Information. The Client undertakes not to submit to WhatsApp or Meta any content, information, or data that is subject to special safeguarding and/or limitations on distribution pursuant to applicable laws and/or regulation.

5.8 Suspension of Services. In addition to any other remedies that the Platform Operator may have, the Platform Operator has the right to immediately limit, suspend or terminate access to all or any part of the WhatsApp and Meta Services connected with the Platform if the Platform Operator has reason to suspect fraudulent, unlawful or unauthorized use of WhatsApp Business Solution services in violation of the WhatsApp and Meta terms by the Client or its Authorized Users. The Platform Operator draws attention to the fact that under the WhatsApp and Meta Terms, WhatsApp and/or Meta may be entitled to immediately limit, suspend, or terminate a Client's access to the WhatsApp Business Solution, the Meta Business Messaging Partner Portal, and/or any or all data (or any portion thereof) (including access via any or all associated WhatsApp Business Accounts), if WhatsApp and/or Meta believes it necessary to protect the integrity, security, or privacy of any WhatsApp or Meta products, systems, or data and/or any users, (b) protect any WhatsApp or companies from regulatory, financial, or legal liability and/or to comply with any law, rule or regulation, or (c) prevent or limit risk of harm or damage (including reputational harm or damage) to any WhatsApp or Meta companies and/or any WhatsApp or Meta products, systems, or data.

5.9 Client Representation. The Client represents and warrants that it (i) shall perform all of its obligations under these Terms & Conditions, (ii) shall adhere to these WhatsApp and Meta Terms and (iii) shall comply with the Platform Operator’ directions, as long as these directions do not concern the purposes and means of the processing of personal data by the Client.

5.10 Testing. From time to time, Meta and WhatsApp may enable the Platform Operator to test new products, features and services comprised of Meta components and/ or WhatsApp Solution components. To the extent the Platform Operator is using any such components on behalf of the Client, the Client confirms that (i) the Platform Operator is an authorized solution provider for the Client, (ii) the Platform Operator has authority to enter into a testing agreement to test such new products, features and services on behalf of the Client, and (iii) the Client confirms that it shall be bound to the terms of the testing agreement applying to such new products, features and services.

5.11 No Reselling of Services. The Client may not resell the services based on WhatsApp Business Solution or allow third parties to integrate with, access or use the WhatsApp Business Solution other than as provided for in the WhatsApp and Meta Terms, or (b) use any of the Meta or WhatsApp names and trademarks in any way (unless permitted under another agreement between Client and Meta).

5.12 Cloud API. Meta offers the WhatsApp Business Solution through CloudAPI which includes hosting and transmitting the content and data the Client uploads through the Platform, when using the WhatsApp Business Solution, including messages (sent or received), company data and personal information (the ”Company Content"). When using CloudAPI, to operate, secure and provide CloudAPI to Client, Client grants Meta a non-exclusive, worldwide, royalty-free, fully paid right to use any content, insofar as they are protected by intellectual property or similar rights, pursuant to the Meta Hosting terms for Cloud API (https://www.facebook.com/legal/Meta-Hosting-Terms-Cloud-API).

5.13 Client Information. The Client acknowledges that the Platform Operator may provide WhatsApp and/or Meta with reports related to Client’s use of the WhatsApp Business Solution, as reasonably request from time to time, no later than 30 days following the date of such request. This includes all information that is requested by WhatsApp and/or Meta in connection with a response to or request from local authorities, regulators, or other governmental entities, or as otherwise reasonably required by applicable Laws, regulation, or administrative requirements. Client represents and warrants to have have obtained from End Customers all necessary rights and consents required by applicable Laws and regulation to provide the foregoing information to Meta.

6.     Processing of Contracts on the Platform

6.1 No End Customer Contracts. The Platform Operator does not conclude any purchase contracts or other contracts for the acquisition of the products or services sold with the Platform with the End Customers of the Clients via the Platform, but only provides the technical infrastructure. For these contracts with the Client's End Customers, the respective terms & conditions and notices or policies of the Client and/or payment service providers may apply.

6.2 No Payment Processing on the Platform. As a rule, neither contracts nor payments between Client and their End Customers are concluded directly on the Platform, but within the framework of an online shop system (e.g., Shopify), an external payment service provider, or any other external digital contraction or transaction platform of the Client to which the End Customer may be linked in the chat window of the Platform. Should a contract nevertheless be concluded directly on the Platform, the processing of the concluded contracts is the sole responsibility of the respective Client and their End Customers. With regard to the contracts concluded on the Platform, the Platform Operator does neither guarantee the fulfilment of the contracts concluded on the Platform between the Client and End Customers nor assumes any liability for any defects or defects of title of the traded products and services. The Platform Operator is under no obligation to ensure the fulfilment of the contracts concluded between Client and End Customers on the Platform.

6.3 No Identity Verification. The Platform Operator cannot guarantee the true identity and power of disposal of the Client or End Customers. In case of doubt, Client and End Customer are required to inform themselves in a suitable manner about the true identity and the power of disposal of the other contractual partner.

7.     Fees, Payment and Billing

7.1 Payment of Fees. The amount of the fees to be paid by the Client to the Platform Operator, the payment method and the payment period are based on the information in the Commercial Agreement. Transaction fees for the fee payments are to be paid by the Client.

7.2 Billing. Unless otherwise agreed, the Platform Operator shall provide the Client at the latest on the 15th of each month with an electronic statement of the base fee for the previous month and any additional fees incurred for the previous month. Unless otherwise agreed, the fees incurred in each case are due fourteen (14) days after the invoice is issued, plus value added tax at the applicable tax rate. The Client agrees to the storage of the billing data for evidentiary purposes and/or within the scope of the statutory retention obligations. Objections to the respective invoice must be substantiated and submitted in Text Form to the Platform Operator within four (4) weeks of receipt of the invoice, otherwise the respective invoice shall be deemed approved.

7.3 Late Payment. In the event of late payment regarding the fees, the Platform Operator is entitled to demand interest on the outstanding fees from the respective Client at a rate of 9 percentage points above the German base interest rate. If payment of the fees is already more than four (4) weeks late, the Platform Operator is entitled to lock the Client's access to the Platform (see Section 2.3 for details). The Platform Operator's claim to fees remains unaffected by such blocked access. Only when the outstanding fee claims have been settled by the Client shall their access be reactivated.

7.4 Comission. If the fees pursuant to the Commercial Agreement include a commission, this commission shall also be due for orders placed by End Customers which are actually not executed later or which are reversed, e.g., due to a withdrawal before or after delivery. However, the commission shall be refunded to the Client by the Platform Operator, provided that the Client has effectively informed the Platform Operator of the right of withdrawal, the Client is not acting fraudulently, an End Customer as a consumer legally exercises their legal right of withdrawal based on the Client's proper withdrawal policy and the Client provides appropriate evidence of this proper withdrawal to the Platform Operator.

7.5 Fee per User Account. If the fees pursuant to the Commercial Agreement include a fee by user account for a given period, this fee applies for any user account that is or has been registered during the respective period regardless for how long this user account has been registered.

7.6 Fee per Monthly Active User. If the fees pursuant to the Commercial Agreement include a fee by monthly active user (“MAU”), this fee applies with the first message sent or received via a specific Selected Messaging Channel application (e.g., WhatsApp) from or to a unique Selected Messaging Channel user (e.g., a specific WhatsApp number of an End Customer) during a contractual month. Regardless how many messages have been sent or received within a contractual month.

7.7 Conversation-based Fees. If the Commercial Agreement was signed before June 15th 2023, the fees pursuant to the Commercial Agreement refer to an Inbound- or an Outbound-Conversation. The following definitions shall apply: (i) Outbound-Conversations: A conversation that initiates from a business including Marketing-, Utility-, Authentication-Conversations (business-initiated); (ii) Inbound-Conversations: A conversation that initiates in response to a user message including Service-Conversations (user-initiated). If the contract was signed from June 15th 2023 onwards, the fees pursuant to the Commercial Agreement refer to a Marketing-, Utility-, Authentication, or Service-Conversation. The same definitions as defined by Meta and WhatsApp apply (https://developers.facebook.com/docs/whatsapp/pricing).

7.8 WhatsApp Fees. For the use of WhatsApp, the fees to be paid shall include fees of WhatsApp to access and send out messages, campaigns or other communication as provided by WhatsApp in accordance with the applicable WhatsApp Terms. By default, the latest WhatsApp fees shall be deemed to be dynamically agreed, as set out in the Commercial Agreement and as published by WhatsApp. Those WhatsApp fees are inclusive of the fees for Cloud API, unless the Parties have agreed on separate fees for the use of CloudAPI in the Commercial Agreement.

7.9 Renewal of Platform Subscription. When renewing a Platform Subscription, the Platform Operator reserves the right to adapt fees for the Platform Subscription and related Services at its own discretion, including whether any discounts are offered or continued. When increasing fees, the Platform Operator will consider factors such as the development of the Consumer Price Index (CPI) of the German Federal Statistical Office and fee adjustments by partners such as Selected Messaging Channel providers. The Platform Operator shall notify the Client of such a fee increase in Text Form (i) at least one (1) month before the end of the running Subscription Period and (ii) sufficiently in advance to allow the Client at least ten (10) working days to determine whether to terminate the Platform Subscription to the end of the running Subscription Period, whereas the agreed ordinary notice periods shall remain unaffected. If the increase in the fees is more than 8% p.a. in total, the Client has the right to terminate the Platform Subscription without notice period at the end of the current running Platform Subscription for cause in Written Form.

8.     Rights of Use and Ownership

8.1 License and Platform Ownership. The Platform Operator grants the Client a non-exclusive, geographically unrestricted, non-sublicensable and non-transferable rights to use the Platform, limited in time to the Subscription Period in accordance with this Section 8 of the Terms and Conditions. Otherwise, the Platform Operator shall retain sole and exclusive ownership of all right, title and interest in and to the Platform and related services, including all software, technology, information, data, documentation and materials, all copies, improvements and derivative works, including all copyrights, trademarks, patents, trade secrets, know-how and all other related intellectual property rights. Third-party software remains the property of the third-party provider from whom the Platform Operator has acquired the right to use it as part of its offering or to offer it to the Client for use. Apart from the limited rights, all other rights to the Platform and the associated services, including the software, documentation and materials, are expressly reserved by the Platform Operator.

8.2 Client Ownership. As between the Platform Operator and the Client, the Client represents and warrants that it owns (or has the legal right to own): (i) its own confidential and non-confidential company data, Authorized User data and End Customer data to the extent permitted by applicable laws and regulations (the “Client Data”); and (ii) subject to the rights of applicable open source software licensors, any other Company Content including custom content and code developed solely by Client (and/or its Authorized Users), without any contribution from Platform Operator, excluding any derivative works of the Platform Operators' intellectual property rights and Confidential Information. The Client hereby grants the Platform Operator a fully paid-up, royalty-free, worldwide, non-exclusive right and license unlimited in time and space to use, reproduce, process or transmit the Client Data and Company Content to the extent necessary to provide the Platform and related services to the Client and its Authorized Users and to the extent otherwise permitted under these Terms and Conditions and the limits set forth by the Data Processing Addendum for any personal data therein. This right of use and license extends to the use of Client Data and other Company Content in the form of aggregated or otherwise effectively anonymized information and metrics relating to how the Platform is used by the Client and its Authorized Users, including insights from selected Platform use cases and their success and performance metrics for the purpose of rendering the Support and Success Services as agreed as well as needs-based designing, developing and optimizing the Platform and Support and Success Services.

8.3 Upgrades. If the Platform Operator implements new versions, updates, upgrades or other new deliveries with regard to the Platform during the term, the above rights shall also apply to these.

8.4 No Transfer of Software. There shall be no physical or other actual transfer of the Platform or its software components to the Client.

8.5 License Limitations. The Client shall not be entitled to any rights not expressly granted to the Client above. In particular, the Client is not entitled to use the Platform beyond the agreed use, i.e., to use it to develop other services for third parties or to make the Platform accessible to third parties beyond the agreed use. They may neither activate nor use functionalities and features of the Platform for which the Platform Operator has not granted them any rights of use according to the Commercial Agreement and these Terms and Conditions. In particular, the Client is also not permitted to duplicate, sell or make the Platform available for a limited period of time, in particular not to rent, lease or lend it. They may also not distribute or pass on the Platform in any other way, including via the Internet or a subsequent public or private data network. The Client is not permitted to change, translate, copy or decompile the source code of the Platform or to examine its functions, unless this is explicitly permitted by law. The Client shall be under an obligation to respect the position of the Platform Operator the other right holders hold under the laws governing copyrights and ancillary copyrights. Distinguishing marks, logos and copyright notices must not be removed or altered.

8.6 Open-Source Components. The open-source software components used in the Platform are presented on a specially set up information page in the platform itself, provided that there is a necessary obligation to be named by the requirements of the open source software.

9.     Warranty and Liability of the Platform Operator

9.1 NO WARRANTIES. THE PLATFORM AND RELATED SERVICES ARE LICENSED AND PROVIDED TO THE CLIENT "AS IS." THE PLATFORM OPERATOR MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE PLATFORM, UNLESS REQUIRED BY APPLICABLE LOCAL LAW. IN PARTICULAR, THE PLATFORM OPERATOR DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE. THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE PLATFORM, AND ITS INTERACTION WITH OTHER EQUIPMENT OR SOFTWARE OWNED OR USED BY THE CLIENT, IS ASSUMED BY THE CLIENT. IN JURISDICTIONS THAT DO NOT ALLOW AN EXCLUSION OF WARRANTY, THE ABOVE EXCLUSION DOES NOT APPLY AND THE CLIENT SHALL BE SUBJECT TO THE BELOW LIMITATION OF WARRANTY SUBJECT TO THE APPLICABLE LAW.

9.2 Limitation of Warranty. Insofar as the exclusion of warranty under the above Section 9.1 is not permissible by local law, the Platform Operator warrants the functionality and operational readiness of the Platform and the associated service offerings "as is" and in accordance with the provisions of the Commercial Agreement and these Terms & Conditions as well as in accordance with the statutory warranty provisions under Governing Law. The following shall apply in particular in Germany and Austria:

9.2.1 Warranty Regulations. The Platform Operator shall be liable for defects in the Platform and related fee-based services in accordance with the warranty regulations of tenancy law (Sections 536 et seq. BGB), subject to the condition that, contrary to Section 536a (1) BGB, liability for damages shall only exist in the event of fault in accordance with the provisions of Section 10 of this Agreement. The tenant's right of self-remedy according to Section 536a (2) BGB and the Platform Operator’s obligation to pay damages according to Section 536a (1) BGB, as far as the standard provides for liability regardless of fault shall be excluded.

9.2.2 Defects. A defect shall exist if the Platform does not provide the services, features and functionalities contained in the Commercial Agreement when used in accordance with these Terms and Conditions and this has a significant effect on its suitability for the contractually agreed use. A defect also exists in particular if the Client processes personal data using the Platform and the Platform does not meet the minimum requirements of the GDPR as required under the Data Processing Addendum agreed. A defect may also be present if third-party rights prevent the contractual use of the Platform.

9.2.3 Exclusion of Warranty Claims. The Client shall have no warranty claims
a) in the event of only insignificant deviation from the agreed quality or in the event of only insignificant impairment of the usability of the software product,
b) in the case of defects caused by non-compliance with the conditions of use intended for the Platform in its user manuals and documentation such as the "charles’ Help Center",
c) in the event of incorrect operation of the Platform by the Client or its Authorized Users,
d) in the event of the use of hardware, software or other equipment that is not suitable for the use of the software product,
e) for any shortcoming or deviation of the Platform caused by a Third-Party Service as outlined in Section 1.7 of these Terms and Conditions,
f) if the Client fails to report a defect immediately and without undue delay and the Platform Operator was unable to remedy the defect as a result of the failure or delay to report the defect, or
g) if the Client is aware of the defect upon conclusion of the Commercial Agreement or when commencing use of the Platform, whichever is earlier, and has not reserved his rights.

9.2.4 Remediation. If a defect has been reported by the Client and the Client's warranty claims are not excluded, the Platform Operator shall be obliged to remedy the defect within a reasonable period of time - by measures of its own choice. The Client shall give the Platform Operator a reasonable amount of time and opportunity to remedy the defect. If necessary, the employees and agents of the Platform Operator shall be granted access to the Client's systems for this purpose. The Platform Operator may fulfill its obligation to remedy defects by making updates with an automatic or manual installation routine available for download or applied by the Platform’s support team and offering necessary support to solve any installation problems that may arise.

9.2.5 Remedies. In the event of impossibility or failure to remedy the defect, culpable or unreasonable delay or serious and final refusal to remedy the defect by the Platform Operator or other unreasonableness of remedying the defect for the Client, the Client is entitled in particular to reduce the fee owed in accordance with the extent of the impairment (reduction). The Client is not entitled to assert a claim for a reduction by independently deducting the amount of the reduction from the fee to be paid on an ongoing basis; the right under the law of unjust enrichment to reclaim the overpaid part of the fee remains unaffected by this.

9.2.6 Other Services. Insofar as the services offered in connection with the use of the Platform are mere professional services (e.g., support services or other professional services), the Platform Operator shall be liable for defects in these services in accordance with the provisions of the law on service contracts (§§ 611 et seq. BGB).

9.3 EXCLUSION OF LIABILITY. THE PLATFORM OPERATOR AND ITS SERVICE PROVIDERS INCLUDING IN PARTICULAR ANY SELECTED MESSAGING CHANNEL PROVIDERS SHALL NOT BE LIABLE TO THE CLIENT IN RESPECT OF ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION ALLEGING ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM USE OF THE PLATFORM OR ITS RELATED SERVICES OR POSSESSION OF ANY CLIENT DATA; OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, CONTRACTS OR SAVINGS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF CLIENT’S USE OF OR INABILITY TO USE THE PLATFORM, RELATED SERVICES OR CLIENT DATA, ANY DEFECT IN THE CLIENT DATA, OR THE BREACH OF THESE TERMS AND CONDITIONS OR COMMERCIAL AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, UNLESS REQUIRED BY APPLICABLE LOCAL LAW. IN JURISDICTIONS THAT DO NOT ALLOW AN EXCLUSION OF LIABILITY, THE ABOVE EXCLUSION DOES NOT APPLY AND THE CLIENT SHALL BE SUBJECT TO THE BELOW LIMITATION OF LIABILITY SUBJECT TO THE APPLICABLE LAW.

9.4 Limitation of Liability. Insofar as the exclusion of liability under the above Section 9.3 is not permissible by local law, an in particular in Germany and Austria, the Platform Operator shall be liable for any claims, demands or actions, irrespective of their nature or cause, alleging any loss, injury or damages, directly or indirectly, which may result from the use of the Platform or related services or the possession of any Client Data including any loss of profit, revenue, data, contracts, contract chances or savings, or any other incidental, special or consequential damages out of the use or inability to use the Platform, related Services or Client Data, any defect in Client Data or the breach of these Terms and Conditions or Commercial Agreement, regardless of whether from contract law, a warranty or tort law, only in accordance with the following conditions:
a) for intent or gross negligence,

b) for injury to life, limb or health, or in accordance with the provisions of the German Product Liability Act and

c) to the extent of a guarantee expressly assumed by the Platform Operator.

9.4.1 Cardinal Obligations. In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (“Cardinal Obligation”), the Platform Operator's liability shall be limited to the amount of damage that is foreseeable and typical for the type of transaction in question. A Cardinal Obligation is in particular the provision of the Platform as stipulated in the Commercial Agreement and in line with these Terms and Conditions.

9.4.2 Exclusion of Liability. Other than the above, the Platform Operator shall have no further liability. In particular, the Platform Operator shall not be liable for initial defects unless the requirements of the preceding paragraphs are met. If the Client suffers damage due to a loss of Client Data, the Platform Operator shall not be liable for this, irrespective of any involvement, to the extent that the damage could have been prevented if the Clients’ Authorized Users had fully backed up all relevant data in a manner appropriate to their purpose on a regular basis. The Platform Operator shall also not be liable for any damage or disadvantage due to any shortcoming or deviation of the Platform caused by a Third-Party Service as outlined in Section 1.7 of these Terms and Conditions.

9.4.3 Scope of Limitation. The above limitation of liability shall also apply in relation to the Client for the personal liability of any internal or external employees, representatives, vicarious agents and bodies of the Platform Operator, in particular its managing directors, irrespective of the legal grounds of liability.

9.5 Force Majeure; Exclusion of Liability for Disruptions of Infrastructure. Neither Party shall be liable for any delay or failure to perform any obligation under these Terms and Conditions (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or software utility failures, refusal of government license or natural disaster (“Force Majeure”). More specifically, the Platform Operator shall not be liable for disruptions in the line network for which the Platform Operator is not responsible and for actions of third parties not acting on behalf of the Platform Operator. Although the Platform Operator is dedicated to ensure a technically smooth process without disruptions to its own IT systems, applications etc., a disruption-free service cannot be guaranteed. In this respect, the Platform Operator is permitted to remedy technical problems within a period of time freely determined by them. In particular, the Platform Operator also does not guarantee the functional capability and compatibility of IT systems, applications etc. of Client and End Customers who do not directly belong to the Platform and over whom the Platform Operator accordingly has no influence. Such circumstances may therefore influence the availability or functionality of the Services provided by the Platform Operator, but not their contractual conformity. In particular, the Platform Operator or any Selected Messaging Channel provider shall not be not liable for content of any messages or other transactions on the Platform.

9.6 Impairments of Use. Liability does not extend to impairments to the contractual use of the services provided by the Platform Operator on the Platform which are caused by improper or incorrect use by the Client or its Authorized Users.

9.7 Vicarious Agents. The above limitations of liability also apply analogously in favor of the Platform Operator's vicarious agents.

9.8 Third Party Databases and Services. Insofar as the Platform offers the possibility of forwarding to databases, websites, services, etc. of third parties, e.g., by setting links or hyperlinks, the Platform Operator is not liable for the accessibility, existence or security of these databases or services, nor for their content. In particular, the Platform Operator is not liable for their legality, accuracy of content, completeness, topicality, etc.

9.9 WhatsApp and Meta Services. The Platform Operator makes no representations or warranties that the Platform or any WhatsApp or Meta service including, in particular, the WhatsApp Business Solution and Cloud API, meet the needs of regulated entities with heightened confidentiality or data protection requirements for sensitive data, such as healthcare, financial, or similarly regulated entities. The Client is solely responsible for any decision to share Company Content or parts of it with any third parties, and neither Meta, nor WhatsApp or the Platform Operator shall be responsible for use, access, alteration, distribution, or deletion of Company Content by those with whom the Client or, as applicable, the Platform Operator or a service provider make it available. To the extent that the integrity, security, availability or confidentiality of personal information or other Client data depends on measures taken by WhatsApp or Meta, the Platform Operator does not warrant that they are adequate, effective or state of the art, and the Platform Operator shall not be liable for any shortcomings and any consequential damages that may arise therefrom.

10.  Third-Party Content; Third-Party Services

10.1 No Third-Party Content. Clients are prohibited from posting content (e.g., through links or frames) on the Platform that violates statutory provisions, official orders or offends against morality. Furthermore, they are prohibited from posting content (e.g., images or descriptions) that violate the rights, in particular copyrights or trademark rights, of third parties.

10.2 No Infringements of Intellectual Property Rights. Under no circumstances does the Platform Operator adopt external content as own. The Client guarantees the Platform Operator that the products and services offered by them on the Platform do not infringe any copyrights, trademarks, patents, other property rights or trade secrets.

10.3 Indemnification by Client. The Client shall indemnify and hold harmless the Platform Operator from all damages arising from the Client’s failure to comply with Client’s obligations under Section 4 and 5 of these Terms and Conditions; and from any claims asserted by any third parties including Authorized Users of the Client against the Platform Operator due to the violation of their rights or due to legal violations based on the offers and/or contents posted by the Client, provided that the Client is responsible for these violations. In this respect, the Client shall also assume the costs of the legal defense of the Platform Operator or, including all court and attorney's fees, shall inform the Platform Operator or immediately about the claim and shall give the Platform Operator or the opportunity to defend the asserted claims, insofar as this is legally permissible. In doing so, the Client shall immediately provide the Platform Operator with all information available to them on the facts and subject matter of the claim in full. The Client does not enter into separate negotiations, settlements or similar with respect to any such third-party claim.

10.4 Third Party Services. With regard to any Third-Party Services integrated by the Client into the Platform, the Platform Operator shall not be liable for their scope of service and features, merchantability or fitness for any purpose, availability, performance or security; any resulting error or disadvantage from improper or non-performance of the integrated Third-Party Services shall be borne by the Client. The Client shall indemnify the Platform Operator against all claims, fines or fees arising in connection with the implementation and use of integrated Third-Party Services, whether foreseeable or unforeseeable, on first demand and to an unlimited extent.

11.  Data protection

11.1 Responsibility of the Client. The Client is solely responsible for its Client Data, including the authenticity, accuracy and manner of collecting, publishing and removing Client Data, as well as for changes, adjustments, edits, modifications by authorized users. Any information or data displayed, generated or collected through Client's use of the Platform shall be subject to Client's control through the technical features made available on the Platform. The Client shall maintain appropriate technical and organizational safeguards for the use of the Platform by its Authorized Users. The Client acknowledges being the sole responsible data controller for any personal data of its’ Authorized Users and End Customers processed with the Platform and, if selected, as processed by the WhatsApp Business Solution and CloudAPI, and shall comply with all applicable data protection requirements with regard to any personal data collected, retained or transmitted by them including to have in place a proper legal basis and fulfill data subject’s rights.

11.2 WhatsApp and Meta Services. For the use of the WhatsApp Business Solution and CloudAPI, to the extent required by any data protection regulation applicable, including in particular the EU General Data Protection Regulation (Regulation (EU) 2016/679 or GDPR, the Client recognizes the concepts of Controller and Processor and agrees to conclude or consent to any specific data processing agreement with the Platform Operator as well as with WhatsApp and Meta as required under applicable WhatsApp and Meta Terms.

11.3 Log Files. The Platform Operator reserves the right to create, retain and analyse log files in line with applicable data protection laws and regulations to identify any misuse by the Client, its Authorized Users and/or third parties with access to the Platform. The Client may retain these logs after the end of the Platform Subscription, insofar as necessary and appropriate for legitimate IT security needs and compliance with applicable laws.

12.  Transfer of Rights and Offset of Claims

12.1 No Transfer Rights. The Client may only use the Platform for its own business activities. The Parties may only transfer their respective rights under the Commercial Agreement or the Terms and Conditions as well as a Platform Subscription and related right of use to a third party, partially or complete, with the prior consent of the other Party in Text Form. The Platform Operator may entrust third parties with the fulfilment of the obligations arising from these Terms and Conditions.

12.2 Offsetting Claims. Any statutory landlord's lien pursuant to Sections 562, 578 BGB in favor of the provider on the Client's Data are excluded. The Client is entitled to offset undisputed or legally enforceable counterclaims against the Platform Operator. The Client may only assert this right of retention if his counterclaim is based on the same contractual relationship.

13.  Duration of Contract

13.1 Term and Termination. The term of Platform Subscription and related associated Support and Success Services shall be determined by the Commercial Agreement. If the Parties do not agree on term and termination in the Commercial Agreement, each Platform Subscription shall have a default period of twenty-four (24) months and may be terminated by giving six (6) months' notice to the end of a Subscription Period. Each Party has the right to terminate the Platform Subscription and related associated Support and Success Services for good cause without notice period. A good cause is in particular:
a) a material breach of the provisions of these Terms & Conditions, which is not remedied even after a reasonable deadline has been set;
b) an act punishable under tort law or the attempt of such an act, e.g. fraud, phishing or hacking;
c) the Client's delay in payment obligation in accordance with the fees to be paid by the Client pursuant to Section 7 of these Terms and Conditions by more than two (2) months;
d) any Unauthorized Usage or any infringement or violation of the Special Client Obligations or the WhatsApp and Meta Terms by the Clients or one of its Authorized Users;
e) the Client is doing business with the Platform in a country that has been sanctioned or targeted with a trade embargo by competent bodies of the European Union or United States of America, which is not remedied even after a reasonable deadline has been set; or
f) a persistent operational disruption of at least three (3) months due to force majeure beyond the Platform Operator's control, such as natural disasters, fire, collapse of line networks, which prevents use of the Platform in its entirety.

13.2 Continuation of Payment and Services. Payment for Platform Subscription is owed until the end of the Subscription Period, unless if terminated for good cause. If the Client is responsible for good cause of termination under these Terms and Conditions, the Client is obliged to continue to pay the Platform Operator the agreed fees minus the expenses saved by the Platform Operator until the earliest possible time of the end of the contract through ordinary termination. In the event of an ordinary termination, upon delivery and receipt of correct notice, the applicable Platform Subscription shall end on the last day of the then-current Subscription Period. In the event of termination for cause, the Client’s right of use shall end once the Platform Operator suspends access in accordance with these Terms & Conditions.

13.3 Notice of Termination. Any termination must be made in Written Form or is otherwise considered null and void, regardless of whether verbally confirmed or contested by the Platform Operator.

13.4 Release of WhatsApp and Meta accounts. If the Client wishes to release the WhatsApp Business Accounts or Meta Business Accounts associated to numbers owned by the Client after the end of Services, the Platform Operator shall initiate this process with commercially reasonable effort. However, the Platform Operator does not guarantee any time for the release of a WhatsApp Business Account associated to a number owned by the client.

14.  Confidentiality

This obligation shall continue to apply for a period of 10 years after the end of the contract. In addition, the provisions of a separately concluded Non-Disclosure Agreement (NDA) shall continue to apply, unless the provisions contained in these Terms & Conditions are more extensive or more specific.

14.2 Exclusions. Excluded from this obligation is Confidential Information
a) which was demonstrably already known to the respective recipient when the contract was concluded or which subsequently becomes known to the recipient from a third party without violating a confidentiality agreement, statutory provisions or official orders;
b) which was independently developed by the receiving Party without any use of the Confidential Information;
c) which are publicly known at the time of conclusion of the contract or are made publicly known thereafter, insofar as this is not based on a breach of this contract;
d) which was disclosed with the prior written approval of the other Party or which must be disclosed due to legal obligations or by enforceable order of a court or an authority.

14.3 Handling Confidential Information. The Parties shall only grant access to Confidential Information to consultants who are subject to professional secrecy, who have previously been subject to obligations corresponding to the confidentiality obligations of this agreement or to whose access the other party has previously consented in text form. Furthermore, the Parties shall only disclose the Confidential Information to those internal or external employees and vicarious agents who need to know it for the execution of this contract and shall also oblige them to maintain confidentiality to the extent permitted by law for the period after their departure. In particular, the Client undertakes none of its Authorized Users will pass on any Platform account data or credentials to a competitor of the Platform Operator, i.e. all companies worldwide that are active in the field of conversational commerce or WhatsApp or similar online messaging channel marketing, or otherwise give them access to the Platform.

14.4 Contractual Penalty. Any culpable breach of the above confidentiality obligations by the Client or one of its Authorized Users shall result in a contractual penalty in the amount of the costs of a twelve-month platform subscription in accordance with the Commercial Agreement, but not exceeding EUR 50,000 per breach. In the event of persistent breaches, each month of such continuous breach after the other Party has been notified of the breach shall count as a separate breach. Further claims of the Parties for damages shall remain unaffected. If Platform accounts or credentials are passed on to Platform Operator’s competitors by the Client or its' Authorized Users (as described in Section 14.3.), the Contractual Penalty shall amount to EUR 50,000 per violation, irrespective of whether the Client has acted culpably.

14.5 Responding to Government Data Access Requests. If an administrative body or a court requests Confidential Information, the Parties shall contact each other and shall cooperate to minimize possible adverse effects of such disclosure. The Client acknowledges that, where an administrative body or a court under proceedings requests the Platform Operator to disclose the name and address of the Client, the Platform Operator is obliged to comply and to provide such information about the Client within the scope of the request. The Client further acknowledges that where WhatsApp requires information or evidence regarding the compliance of transactions by or agreements with the Client with the WhatsApp and Meta Terms the Platform Operator is obliged to comply and to provide such information about the Client. The Client is generally responsible for responding to third party requests, including requests regarding any Company Data, such as from regulators, litigants, users, or a law enforcement agency, but Client acknowledges that Platform Operator and Meta or WhatsApp (if engaged) may make disclosures to comply with applicable legal or regulatory requirements. To the extent permissible and possible, a Party obliged to disclose shall inform the other Party in advance and give it the opportunity to take action against the disclosure.

14.6 Public Declarations. Public declarations of a Party about the contractual relationship or cooperation may only be made in mutual agreement after prior consultation of the other Party.

15.  Final provisions

15.1 Changes to these Terms & Conditions. The Platform Operator is entitled to amend the Terms and Conditions at any time, including during a running Platform Subscription, by notifying the Client of amendments to these Terms and Conditions in Text Form one (1) month before they come into effect. If the Client does not explicitly object to such amendments within fifteen (15) days of receipt of the notification in Text Form, the amendments shall be deemed to have been effectively agreed and accepted by the Client in case of continued use of the Platform under the amended Terms and Conditions after the deadline without timely receipt of an objection. The Client shall be reminded of the right to object and the legal consequences of not objecting in the event of amendments to the Terms and Conditions with the initial notification of change. If certain changes to the Terms and Conditions are legally required, for example due to a change of statutory regulations or a technical or operational necessity imposed by third parties such as Selected Messaging Channel providers (e.g., WhatsApp or Meta to change certain service offerings or contractual provisions in WhatsApp and Meta Terms), the Client is not entitled to object. Changes to the Terms and Conditions, which are not legally, operationally or technically required as stated before, and which materially restrict the scope of use of the Platform to the detriment of the Client or introduce new material obligations for the Client that were not previously provided for in these Terms and Conditions, shall require Written Form.

15.2 Written Form and Text Form. Amendments and supplements to these Terms and Conditions or any supplementary annex, including this Section, must generally be made written and signed in line with Section 126 BGB (the “Written Form”), unless agreed otherwise. This requirement shall also be deemed fulfilled by a recognized form of electronic signature such as “DocuSign” or an equivalent electronic acceptance solution without the need of a Qualified Electronic Signature (QES) under Directive (EU) No. 910/2014 (eIDAS). In the event of Termination, the signature of the terminating party by a managing director or board member, a duly authorized representative or an employee who is based on its role typically responsible for the decision to terminate the cooperation is sufficient. A following order or extension of an existing Platform Subscription as well as any change in line with Section 15.1 may also be effectively agreed in a documented electronic format such as e-mail or displayed platform notice (“Text Form”).

15.3 Entirety of Agreement. These Terms & Conditions, the Commercial Agreement(s) and the Annexes referenced herein conclusively contain the contractual terms applicable between the Platform Operator and the Client for the Platform Subscription and any services offered by the Platform Operator to the Client. Any provisions deviating from these Terms & Conditions shall only apply if stipulated in the Commercial Agreement or confirmed in writing by the Platform Operator. The validity of the Clients' general terms and conditions or general terms of purchase (if any) is hereby expressly rejected unless (i) accepted in writing by the Platform Operator's managing directors and under the condition that the provisions therein do not conflict with these Terms and Conditions, the Data Processing Addendum or the Commercial Agreement(s). Any counter-confirmations by the Client with reference to their own terms and conditions are expressly rejected.

15.4 Governing Law and Legal Venue. The contractual relations between Platform Operator and Client including the Commercial Agreement(s) and these Terms and Conditions with its Annexes shall be governed by and construed solely and exclusively in accordance with the laws of the Federal Republic of Germany (the “Governing Law”). The application of German conflict of law rules and the UN Sales Conventions is hereby excluded. The exclusive place of jurisdiction for all disputes arising from or in connection with the Platform and the contractual relationship is the registered office of the Platform Operator in Berlin, Germany. The Platform Operator remains entitled to bring an action at the Client's general place of jurisdiction within the meaning of Section 12 of the German Civil Code of Procedure.

15.5 Invalidity of Provisions. Should one of the provisions of these Terms and Conditions, one of its Annexes, the Commercial Agreement or a provision subsequently incorporated into them be or become void or unenforceable in whole or in part, or should a gap or similar inconsistency in these Terms and Conditions or the Commercial Agreement become apparent, this shall not affect the validity of the remaining provisions (preservation). It is the express intention of the Parties to maintain the validity of the remaining provisions under all circumstances and thus to waive Section 139 BGB in its entirety. In place of the invalid or unenforceable provision or to fill any gap, the valid and enforceable provision that comes closest in legal and economic terms to what the Parties intended or would have intended according to the meaning and purpose of the concluded agreements if they had considered this point when concluding these Terms and Conditions or when including the provision shall be deemed to have been agreed with retroactive effect. If the invalidity of a provision is based on a measure of performance or time (deadline or date) specified therein, the provision shall be deemed to have been agreed with a legally permissible measure that comes closest to the original measure (fictitious replacement). If a fictitious replacement is not possible, a provision or regulation in accordance with the content of the previous sentence must be agreed to replace the void or unenforceable provision or to close the gap (obligation to replace).