Master Service Agreement

Last Updated: January 08, 2024

The most current version of this Master Service Agreement is posted at: commercetools.com/msa (the “Site”).

This online Master Service Agreement (“Agreement”) is entered into between ​​commercetools and Customer and governs the Customer’s use of the commercetools e-commerce software-as-a-service products upon the execution of an Order Form.

“commercetools” and “Customer” refers to the respective entities as defined in the Order Form. 

All other capitalized terms are defined at the end of this Agreement.

Section 1 - The Service

1.1. Use of the Service. commercetools grants to Customer during the Term the right to use and access the Service for Customer’s internal business purposes only in accordance with the Documentation, the Order Form, and this Agreement. 

1.2. Customer Users. The employees and contractors of Customer may access and use the Service on Customer’s behalf (each, a “User”). Customer is responsible for its Users’ use of the Service and compliance with this Agreement.

1.3. Service Level Availability. commercetools will make the Service available in accordance with the Service Level Availability commitments set out in the Documentation.

1.4. Support. commercetools provides customer support in accordance with the Support commitments set out in the Documentation.

1.5 Updates. commercetools shall make commercially reasonable efforts to continuously further develop the Service and, in the course thereof, make innovations and feature enhancements available to the Customer. New releases of and updates to the Service will be delivered as and when available.

1.6 Pre-Release. As part of the continuous development of the Service, commercetools may provide  beta versions of further functionalities from time to time. Customer can decide at its own discretion whether to test such beta versions. Beta versions are generally provided for testing purposes and not for production purposes. The Service Level Availability and Support offerings do not apply to beta versions and they are not considered part of the Service. If used by Customer in production, all restrictions, limitations and Customer obligations under the Agreement apply.

1.7. Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) use the Service to develop a similar or competing product or service; (b) reverse engineer, decompile, disassemble, or seek to access the source code of the Service or any related features; (c) modify or create derivative works of the Service or copy any element of or related features with the Service (other than as authorized in the Documentation); (d) perform any security integrity review, penetration test, denial of service simulation, or vulnerability scan without prior consent of commercetools; (e) provide access to or sub-license the Service to a third party other than as authorized by commercetools; or (f) except where otherwise set out in the Documentation, send any Prohibited Data to the Service.

1.8. Additional Tools. commercetools provides Customer at no extra charge access to its Merchant Center (a user interface for API-Services as a hosted service) and certain SDKs (software development kits). The Merchant Center and the SDKs are made available to the Customer as set out in the Documentation.

Section 2 - Customer Data; Privacy; Security

2.1. Customer Data. Customer selects in the Order Form the data region where the Service will be hosted. Customer represents and warrants to commercetools that it has all necessary rights, consents, and permissions to use and submit Customer Data to the Service, and will not violate or infringe any applicable laws or third-party rights (including intellectual property, publicity, or privacy rights).

2.2. Data Security Commitments. commercetools uses industry-standard administrative, technical, physical, and organizational measures, as described in the Data Processing Agreement and Documentation, designed to protect Customer Data for all of commercetools customers across the commercetools multi-tenant architecture. The Customer shall, without undue delay, inform commercetools of any unauthorized use or breach of security it becomes aware of, or which is affecting the integrity of the Service. 

2.3. Customer Data Export; Back-Ups. At any time during the Term, Customer may export Customer Data in supported formats. commercetools maintains regular back-ups of the Service as set out in the Documentation, for the safety, continuity, and integrity of the Service. Customer is responsible for its own back-ups to meet its regulatory and internal requirements (such as archiving). 

2.4. Obligations. Customer is responsible for Customer Data, including its content and accuracy. Customer agrees that its use of the Service and related features will comply with the Documentation.

2.5. Suspension. commercetools may suspend access to the Service and related services (and the relevant fees for the Service will continue to apply during such period) if: (a) Customer breaches Section 1.7 (Restrictions); (b) Customer has not paid applicable fees when due after commercetools gives Customer a 30 days’ notice of failure to pay; or (c) there is a risk of harm to other commercetools customers or the security, availability, or integrity of the Service due to Customer’s use of the Service. Where practicable, commercetools will use reasonable efforts to provide prior notice of any suspension. Once the issue requiring suspension is resolved, without limiting any commercetools remedies, commercetools will promptly restore access to the Service in accordance with this Agreement.

2.6. Systems Operations Data. In order to provide its customers with the benefits of a multi-tenant cloud offering, commercetools may collect and process utilization statistics and other technical data (e.g. page load data) regarding use, configuration, and deployment of the Service to operate, manage, improve, instrument, benchmark, and support the Service; provided, commercetools will not disclose any information derived from such data if doing so would make it possible for a third party to identify Customer or any individual natural person.

2.7. Data Privacy. commercetools shall implement and maintain appropriate technical and organizational measures to protect any personal data processed by commercetools as part of the Service as described in the Data Processing Agreement in compliance with applicable data protection laws.

Section 3 - Commercial Terms

3.1. Fees.

(a) The fees for the use of the Service are agreed upon in the Order Form and, unless otherwise agreed there, are invoiced annually in advance.

(b) All fees are exclusive of all sales, use, value-added, withholding, duties, goods and services, and/or any other taxes or duties.

(c) All payments are due 30 days after receipt of a duly issued invoice. Customer must provide commercetools with written notification regarding any disputed fees within 30 days of the receipt of the applicable invoice.  If written notification is not received by commercetools within such a 30 day period, the invoice shall be deemed accepted by Customer and Customer shall have waived the right to dispute such amounts. 

(d) In the event of delay in payment of undisputed fees following a written reminder from commercetools after the due date, commercetools may demand interest at the rate of 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is lower.  

(e) In the event of delay in payment of undisputed fees following a written reminder from commercetools after the due date, commercetools may suspend the Service in accordance with Sec. 2.5.(b) until the outstanding amounts have been fully settled. commercetools shall inform the Customer in writing of the intended suspension of services at least seven (7) days before the planned suspension. If Customer still fails to cure the breach of the payment obligation, commercetools reserves the right to terminate in accordance with section 9.2.

3.2. Affiliate Orders. An Affiliate may enter into their own Order Form(s) with commercetools. This creates a separate agreement between the Affiliate and commercetools incorporating this Agreement with the Affiliate treated as “Customer”. Neither Customer nor any Affiliate has any rights under the other’s agreement with commercetools, and breach or termination of any such agreement is not breach or termination under any other.

Section 4 - Warranties 

4.1. Each party represents and warrants to the other that (a) it has full corporate right and authority to enter into and perform this Agreement and (b) it shall comply with all applicable laws and regulations in the performance of its obligations under this Agreement.

4.2. commercetools represents and warrants that its provision of the Service complies with applicable law.

4.3. commercetools warrants to Customer that the Service will perform materially as described in the Documentation. If commercetools breaches this warranty and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then commercetools will use reasonable efforts to correct the non-conformity. If commercetools cannot correct the non-conforming Service, either party may terminate the applicable Service from the affected Order Form, in which case commercetools will refund to Customer any such pre-paid, unused fees for the terminated portion of the Term. These procedures are Customer’s sole and exclusive remedy and commercetools’s entire liability for breach of this Section 4.3. This warranty does not apply to issues caused by misuse or unauthorized modifications or to services provided free of charge.

4.4. Disclaimers. Except as stated in this section, commercetools provides the Service on an “AS-IS” basis. To the fullest extent permitted by law, commercetools disclaims, and this Agreement excludes, any implied or statutory warranty, including any warranty of title, non-infringement, merchantability, or fitness for a particular purpose.

Section 5 - Confidentiality

5.1. Confidential Information. For the purposes of this Agreement, the parties define “Confidential Information” to mean any of the information disclosed under this Agreement that is designated by the disclosing party as proprietary or confidential, or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. commercetools’ Confidential Information includes the terms and conditions of this Agreement and any technical, pricing, or performance information about the Service or related services.  

5.2. Obligations. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors, subcontractors, and other representatives having a legitimate need to know such Confidential Information, provided the receiving party remains responsible for their compliance with this Section 5 (Confidentiality) and such parties are bound to confidentiality obligations no less protective than this Section 5 (Confidentiality).

5.3. Exclusions. These confidentiality obligations do not apply to information that the receiving party can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.

5.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 5 (Confidentiality).

Section 6 - Ownership

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for commercetools’ use rights in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Data. Except for Customer’s use rights in this Agreement, commercetools and its licensors retain all intellectual property and other rights in the Service, the Documentation, and related commercetools technology, services, templates, formats, and dashboards, including any modifications or improvements to these items made by commercetools. If Customer provides commercetools with feedback or suggestions regarding the Service or other commercetools offerings, commercetools may use the feedback or suggestions without restriction.

Section 7 - Limitations of Liability

7.1. To the maximum extent permitted by applicable law and notwithstanding the failure of any remedy to fulfill its essential purpose, in no event shall either party be liable for any indirect, special, punitive, or consequential damages, including without limitation loss of profits, arising from, or related to this Agreement regardless of the form of action even if the party was informed of the possibility of such damages. Subject to section 7.2, each party’s total liability in connection with any and all causes of action and/or any and all theories of liability will be and are hereby limited to and will not exceed the fees paid or payable to commercetools under this Agreement and affected Order Form during the 24 month period immediately preceding the event giving rise to the particular claim or liability.

7.2. Nothing in this Agreement limits either party’s liability for: (i) fraud or fraudulent misrepresentation; (ii) death or bodily injury caused by negligence, gross negligence, or intentional misconduct; (iii) Customer’s payment or indemnity obligations; (iv) a party’s indemnity obligations; or (v) any liability that cannot legally be limited.

Section 8 - Indemnification

8.1. Indemnification by commercetools. commercetools will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized, infringes a third-party’s patent, copyright, or trademark. commercetools will hold harmless and indemnify Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by commercetools resulting from the claim.

8.2. Indemnification by Customer. Customer will defend commercetools from and against any third-party claim to the extent alleging that the Customer Data or the combination of Customer Data with other applications, content, or processes, infringes a third party’s privacy or intellectual property rights; or to the extent related to or arising from Customer’s breach or alleged breach of Section 1.7 (Restrictions). Customer will hold harmless and indemnify commercetools against any damages or costs awarded against commercetools (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.

8.3. Procedures. The indemnifying party’s obligations in this Section 8 (Indemnification) are subject to receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when commercetools is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

8.4. Mitigation and Exclusions. In response to an actual or potential infringement claim, if required by settlement or injunction or as commercetools determines necessary to avoid material liability, commercetools may at its option: (a) procure rights for Customer continued use of the Service; (b) replace or modify the alleged infringing portion of the Service to avoid infringement with substantially similar functionality; or (c) terminate the applicable Service in the affected Order Form and refund any pre-paid, unused fees for the terminated portion of the Term. commercetools’ obligations in this Section 8 (Indemnification) do not apply: (1) to infringement resulting from Customer’s modification of the Service or use of the Service in combination with items not provided by commercetools; (2) to unauthorized use of the Service; (3) to infringement resulting from compliance by commercetools with Customer designs, plans, specifications or instructions; or (4) if Customer settles or makes any admissions about a claim without commercetools’s prior written consent. This Section 8 (Indemnification) sets out each party’s sole and exclusive remedy and a party’s entire liability regarding infringement of third-party intellectual property rights.

Section 9 - Term and Termination

9.1. Term. This Agreement is effective for the duration of the Term and shall continue in force until terminated or upon expiration of all Order Forms. 

9.2. Either party may terminate this Agreement (including all Order Forms) by notice if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. In addition to termination, the terminating party retains the right to seek all remedies available under law or in equity that are not otherwise restricted by this Agreement.

9.3. If commercetools terminates this Agreement for Customer’s material breach under Section 9.2, Customer will promptly pay commercetools any outstanding fees or expenses due and any fees for the terminated portion of the Term. If Customer terminates this Agreement for commercetools’s material breach under Section 9.2, then, at Customer’s request, commercetools will refund to Customer any pre-paid, unused fees for the terminated portion of the Term. In no event will any termination relieve Customer of the obligation to pay any expenses and fees payable to commercetools for the period prior to the effective date of termination. Except where an exclusive remedy is provided, exercising a remedy under this Agreement does not limit other remedies a party may have. 

Section 10 – Professional Services

10.1 Professional Services. Customer may engage commercetools for training, enablement, solution consulting, or other technical services in respect of the Service (“Professional Services”) by entering into an Order Form.  

10.2 Delivery; Use. Customer will give commercetools timely access to Customer materials, systems, and other resources (“Customer Materials”) reasonably needed to provide the Professional Services, and if Customer fails to do so, commercetools’s obligation to provide Professional Services will be excused until access is provided. commercetools may use contractors to provide the Professional Services. Customer represents and warrants to commercetools that it has all necessary rights, consents, and permissions to provide the Customer Materials to commercetools. Customer, as between the parties, retains all ownership rights in the Customer Materials and grants to commercetools a limited right to use and access the Customer Materials only to provide the Professional Services to Customer. commercetools will treat the Customer Materials as Confidential Information. Subject to payment of the applicable fees and a current subscription to the Service, Customer is granted a non-exclusive and non-transferable license to use the product of any Professional Services for its own internal business purposes only and consistent with the licenses and restrictions set forth in this Agreement.

10.3 Ownership. Unless otherwise specified in an Order Form, commercetools retains all rights to deliverables that are created during the performance of the Professional Services. This includes intellectual property, software and its source code, processes, all know-how, system interfaces, templates, methodologies, ideas, concepts, techniques, tools, and technologies (including web-based technologies and algorithms) that are owned, licensed to, developed, or changed by commercetools.

10.4 Professional Services Warranty; Remedy. commercetools warrants to Customer that commercetools will perform any Professional Services in a professional and workmanlike manner. If commercetools breaches this warranty and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then commercetools will use reasonable efforts to correct the non-conformity. If commercetools cannot correct the non-conforming Professional Services, either party may terminate the applicable Professional Services from the affected Order Form, in which case commercetools will refund to Customer any such pre-paid, unused fees for the terminated portion. These procedures are Customer’s sole and exclusive remedy and commercetools’s entire liability for breach of this Section 10.4 (Professional Services Warranty; Remedy). The entire liability of commercetools under or in connection with the Professional Services will at all times be limited to the fees paid for such Professional Services in the Order Form.

Section 11 - General Terms

11.1. Assignment. This Agreement may not be assigned without the other party’s prior written consent; provided that in connection with a merger, reorganization, or sale of all or substantially all of its assets, this Agreement shall automatically transfer to the successor in interest.  In which case, the party shall provide notification that such transfer has occurred within thirty (30) days of such event.

11.2. Governing Law, Jurisdiction, and Venue. Unless otherwise stated in an Order Form, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed as follows:

1. If your physical address as set out in the Order Form is in the European Union or European Economic Area (except Ireland): in accordance with the laws of the Federal Republic of Germany, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Munich. In addition, the German Jurisdiction Specific Terms apply, as set out below in the Appendix for Agreements under German law. 

2. If your physical address as set out in the Order Form is in Ireland, the United Kingdom, the Middle East or Africa: in accordance with the laws of England and Wales, and the parties irrevocably submit to the exclusive jurisdiction of the courts of London.

3. If your physical address as set out in the Order Form is in the United States of America, Canada or elsewhere in North America or South America: in accordance with the laws of the State of New York, and the parties irrevocably submit to the exclusive jurisdiction of the courts of the City of New York, County of New York.

4. If your physical address as set out in the Order Form is in Australia, New Zealand, India or elsewhere in Asia: in accordance with the laws of the state of New South Wales, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Sydney.

11.3. Notices. Notices under this Agreement must be in writing. Notices will be deemed given upon: (a) personal delivery; (b) 3 days after sending via certified, registered mail, or deposit with a globally recognized courier; or (c) email delivery as set out below. 

Customer is responsible for providing commercetools with the most current email and postal address and updating it as applicable. Notices by email to commercetools shall be sent to legal@commercetools.com. Notices by email to Customer shall be sent to the email address set out in the Order Form. Either party may update its address with notice to the other. commercetools may also send operational notices to Customer by email or through the Service.

11.4. Entire Agreement. This Agreement (and all Order Forms) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the event of any conflict or inconsistency between the Order Form and this Agreement, the Order Form will prevail. Customer’s purchases are not contingent on delivery of any future functionality or features. The terms set out in this Agreement apply to the Service only, and do not apply to any free beta trials, unpaid use of the service, pre-release use of commercetools products or services.  The terms in any Customer purchase order, business form, online terms (i.e. click-wrap or browse-wrap), or invoicing portal will not amend or modify this Agreement and are expressly rejected; any of this documentation is for Customer’s own administrative purposes only and is not binding on commercetools.

11.5. Updates. commercetools may modify this Agreement from time to time. If a modification materially impacts this Agreement, commercetools will use reasonable efforts to notify Customer through the Service and/or in accordance with Section 11.3 (Notices). Any changes to this Agreement posted on the Site will be effective upon the earlier of (i) the Customer consenting to such changes in writing or (ii) upon Customer’s next Term renewal, except changes required by law or as necessary for new features will immediately become effective to the extent necessary to comply with such law or as required to use such new features. If Customer objects to the updated Agreement, as Customer’s exclusive remedy and without penalty, Customer may choose not to renew in accordance with the renewal terms set out in the Order Form. 

11.6. Survival. The provisions of section 1.7 (Restrictions), section 4 (Warranties and Disclaimers), section 5 (Confidentiality), section 6 (Ownership), section 7 (Limitations of Liability), section 8 (Indemnification), section 10 (Professional Services), and section 11 (General Terms) of this Agreement shall survive the expiration or termination of this Agreement, in addition to any other provisions of the Agreement and/or any Order Form required to give effect to those provisions.

11.7. Force Majeure. Either party shall be excused from failures or delays in delivery or performance under this Agreement to the extent such failure or delay is, directly or indirectly, attributable to causes beyond its reasonable control, including, without limitation, strikes, illness, virus, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (“Force Majeure Event”) and such cause makes performance or delivery commercially impractical.  Upon the occurrence of a Force Majeure Event:  (a) the time of delivery or performance and time of payment shall be extended for a period of time equal to the time lost by reason of such Force Majeure Event; (b) the non-performing party shall promptly notify the other party of the circumstances hindering its performance and of its plans and efforts to implement a work-around, in which case the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as (i) such circumstances prevail, and (ii) the non-performing party continues to attempt to recommence performance or observance to the greatest extent possible without delay. 

11.8. Public Announcements and Advertising. Any public announcement or advertising of the collaboration of the parties shall be agreed in advance.  However, both parties are entitled to name the respective other party on their websites during the Term of this Agreement.  

11.9. Severability.  If a court of competent jurisdiction finds any provision in this Agreement to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement and the parties or the court will in good faith modify the invalid or unenforceable provision to the extent required to allow its enforcement in a manner that most closely represents the intentions of the parties in entering into this Agreement.

11.10. Anti-Corruption and Export. Each party will, and will cause its employees, consultants, and agents to, comply with all applicable anti-bribery, anti-fraud and export laws and regulations in their provision and use of the Service. 

GLOSSARY OF TERMS USED:

“Affiliate” means a company, whether a corporation or other business entity, that is controlling, controlled by or under common control with Customer. “Control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the equity interest in such corporation or business entity, or the ability in fact to control the management decisions of such corporation or business entity.  

“Customer Data” means the data, information, or content that is sent to the Service. 

„Data Processing Agreement“ means additional terms and conditions under which commercetools will process personal data on behalf of Customer when providing the Service under this Agreement and which is set out here: https://commercetools.com/dpa.

“Documentation” means the commercetools technical guides and documentation made available from the dedicated ‘Documentation’ page of the commercetools website set out here: https://docs.commercetools.com/docs/.

“Order Form” means a purchasing contract for access to the Service or related services that is executed by the parties and references this Agreement. 

“Prohibited Data” means any: (1) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (3) credit, debit, or other payment card data or financial account information, including bank account numbers; (4) credentials granting access to an online account; (5) social security numbers, driver’s license numbers, or other government identification numbers; and (6) other data or information subject to regulation or protection under applicable laws.  

“Service” means the generally-available commercetools products purchased in an Order Form.

“Term” means the then-current period of use set out in an Order Form.

Appendix for Agreements under German law 

If you are contracting with commercetools GmbH and the applicable law has been set to German law, then the following terms and conditions (the "German Jurisdiction Specific Terms") apply to you and are incorporated as part of the Agreement. 

In the event of any conflict between the German - Jurisdiction Specific Terms and the terms otherwise set out in this Agreement, the terms of the German - Jurisdiction Specific Terms shall prevail.

Section 4 - Warranties in the Agreement is replaced in its entirety with the following:  

4.1. Each party warrants to the other that (a) it has full corporate right and authority to enter into and perform this Agreement and (b) it shall comply with all applicable laws and regulations in the performance of its obligations under this Agreement.

4.2. commercetools warrants to Customer that the Service will perform materially as described in the Documentation.

4.3. A defect shall be deemed to exist, if the Service does not have the qualities described in the Service Availability and Support commitments. commercetools shall at its own discretion: (a) rectify the defect or (b) provide the Customer with a reasonable possibility of working around the defect (workaround). Only if it is factually not possible to remedy the defect under (a) or (b) despite reasonable efforts, and without prejudice to any further rights and remedies available to the Customer at law or contract, commercetools shall refund the fees paid by the Customer for the defective Service.

4.4. If commercetools, in the event of a defect, although three attempts have been made to remedy the defect or provide a replacement, has been unable to remedy the defect or has been unable to provide a replacement in such a way that it is possible for the Customer to use the Service in accordance with the Agreement, the Customer shall be entitled, at its discretion and without prejudice to any other rights and remedies available to the Customer under law, to (a) reduce the fee or (b) to terminate the Agreement extraordinarily. Any claims for compensation of damages shall remain unaffected, excluding claims based on expenditures made in vain.

4.5. For issues caused by misuse or unauthorized modifications or for services provided free of charge, commercetools provides no warranty.

Section 7 - Limitations of Liability in the Agreement is replaced in its entirety with the following:  

7.1 Each party is liable for slight negligence, both for their own conduct as well as any conduct attributable to it, only if material contractual duties are violated (Kardinalpflichten). In this case the liability is limited to the typical and foreseeable damage to be expected under this Agreement. Material contractual duties are those whose breach jeopardizes the attainment of the purpose of the Agreement, whose fulfillment is essentially required to execute the Agreement and on whose compliance the parties in general rely on.

7.2. Each party’s total liability in connection with any and all causes of action and/or any and all theories of liability will be and are hereby limited to and will not exceed the fees paid or payable to commercetools under this Agreement and affected Order Form during the 24 month period immediately preceding the event giving rise to the particular claim or liability.

7.3. Nothing in this Agreement, including section 7.2, limits either party’s liability for claims based on: (i) intend or gross negligence (ii) fraud or fraudulent misrepresentation; (iii) death or personal injury caused by negligence, gross negligence, or intentional misconduct; (iv) Customer’s payment obligations; (v) indemnity obligations; (vi) in cases the Product Liability Act applies, and (vii) for damages that fall within the scope of an independent guarantee given by commercetools, unless otherwise provided in the respective guarantee agreement.

Section 9.3 - Term and Termination is replaced in its entirety with the following:

9.3. If commercetools terminates this Agreement for Customer’s material breach under Section 9.2, Customer will promptly pay commercetools any outstanding fees or expenses due and any fees for the terminated portion of the Term less the expenses saved by commercetools up to the earliest date on which the contract would end in the event of ordinary termination by the Customer. If Customer terminates this Agreement for commercetools’s material breach under Section 9.2, then, at Customer’s request, commercetools will refund to Customer any pre-paid, unused fees for the terminated portion of the Term. In no event will any termination relieve Customer of the obligation to pay any expenses and fees payable to commercetools for the period prior to the effective date of termination. Except where an exclusive remedy is provided, exercising a remedy under this Agreement does not limit other remedies a party may have.

Section 10.4 - Professional Services Warranty; Remedy in the Agreement is deleted in its entirety.