Master Service Agreement for Azure Marketplace
Last Updated: July 17, 2024
IMPORTANT – PLEASE SCROLL DOWN AND READ THE FOLLOWING CAREFULLY BEFORE DOWNLOADING, INSTALLING, ACCESSING OR USING THE SERVICE.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND, DEPENDING ON YOUR LOCATION, WITH ONE OF THE FOLLOWING COMMERCETOOLS ENTITIES, NAMELY:
YOUR LOCATION IN EMEA: commercetools GmbH, Adams-Lehmann-Strasse 44, 80797 Munich, Germany;
YOUR LOCATION IN AMERICA (North, Central and South America): commercetools, Inc., 324 Blackwell St. Suite 120, Durham, NC 27701;
YOUR LOCATION IN APAC (Including AUSTRALIA/NEW ZEALAND): commercetools AU Pty Ltd, Suite 2, Level 5, 6-10 O’Connell Street, Sydney, NSW 2000;
(hereinafter referred to collectively as “commercetools”)
BY PURCHASING DIRECTLY VIA THE AZURE MARKETPLACE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. This Master Service Agreement for Azure Marketplace (“Agreement”) is entered into between commercetools and You and governs Your use of the commercetools e-commerce software-as-a-service products subscribed to via the Azure Marketplace.
All other capitalized terms are defined at the end of this Agreement.
Section 1 - The Service
1.1. Use of the Service. commercetools grants You during the Term (defined below), the right to use and access the Service for Your internal business purposes only in accordance with the Documentation, the Marketplace Order, and this Agreement.
1.2. Users. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, You must not use the Service. Your employees and Your contractors may access and use the Service on Your behalf (each, a “User”). You are responsible for Your 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. Restrictions. You 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.
1.7. Additional Tools. commercetools provides You 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 You as set out in the Documentation.
Section 2 - Your Obligations
2.1. Your Data. You represent and warrant to commercetools that You have 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). You 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.
2.2. Suspension. commercetools may suspend access to the Service and related services if: (a) You breach Section 1.6 (Restrictions); or (b) there is a risk of harm to other commercetools customers or the security, availability, or integrity of the Service or other commercetools products and services due to Your use of the Service. commercetools reserves the right at its sole discretion to delete, at any time and for any reason, any content, application, or software, and any such content, application or software may become permanently lost if so deleted.
2.3. 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 You or any individual natural person.
Section 3 - Fees
3.1. The Fees shall be paid by You in accordance with the Azure Marketplace order.
Section 4 - Disclaimers and Exclusions of Warranties
4.1. General Disclaimer. The Service is provided to You on an “as is” and “as available” basis, and commercetools hereby disclaims all express or implied representations, warranties, guarantees, and conditions with regard to (a) the Service, including but not limited to software, hardware, systems, networks or environments and (b) merchantability, satisfactory quality, noninfringement, and fitness for a particular purpose.
4.2. Performance. commercetools does not guarantee that (a) the Service will be error-free or uninterrupted, or that commercetools will correct all errors in the Service; (b) the Service will operate in combination with Your content or Your applications, or with any other software, hardware, systems or data; (c) Your content and Your applications will be secure or not otherwise lost or damaged; and (d) the Service, including any products, information or other material You obtain or purchase from commercetools under this Agreement, will meet Your requirements or expectations. You acknowledge that commercetools does not control the transfer of data over communications facilities, including the internet, and that the Service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. commercetools is not responsible for any delays, delivery failures, or other damage resulting from such problems.
4.3. Your Obligations. You are solely responsible for any content, application or non-commercetools software that You load into or create, and agree, at Your sole cost and expense, to defend and hold harmless commercetools against any claim and indemnify commercetools from any damages, liabilities, costs and expenses or the settlement agreed to by You, arising out of or in any way connected with any such content, application or non- commercetools software. commercetools is not responsible for the security of any content, application, or software.
4.4. Reservation of Rights. commercetools reserves the right to make changes or updates to the Service at any time without notice.
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 - Feedback and Ownership
6.1. Feedback. “Feedback” means any input regarding commercetools products and/or services (including the Service), including changes or suggested changes to commercetools’ current or future products and/or services. Notwithstanding anything that You may note or state in connection with providing Feedback, all Feedback provided by You shall not be considered confidential information and shall be received and treated by commercetools, in its sole discretion, on a non-confidential and unrestricted basis. You agree that commercetools retains all ownership and intellectual property rights (including all derivatives or improvements thereof) in and to any Feedback provided by You or any other party, and acknowledge that commercetools may use the Feedback for any purpose, including but not limited to incorporation or implementation of such Feedback into a commercetools product or service, and to display, market, sublicense and distribute such Feedback as incorporated or embedded in any product or service distributed or offered by commercetools.
6.2. Ownership. Except for Your 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.
Section 7 – Limitation of Liability
7.1. Limitation of Liability. In no event shall commercetools be liable to You or any third party for any indirect, incidental, special, punitive or consequential damages, or any loss of revenue or profits, data or data use, arising out of or related to this Agreement, whether in contract or tort, or otherwise, even if commercetools has been advised of the possibility of such damages. In no event shall commercetools’s total liability under this Agreement for all damages exceed the amount of One Thousand United States Dollars ($1,000.00 USD).
Section 8 - Indemnification
8.1. General Indemnification. You agree to defend, hold harmless and indemnify commercetools against any claim arising out of a violation of Your obligations under this Agreement.
8.2. Infringement Indemnification. You will defend commercetools from and against any third-party claim to the extent alleging that the Your data or the combination of Your 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 Your breach or alleged breach of Section 1.6 (Restrictions). You will hold harmless and indemnify commercetools against any damages or costs awarded against commercetools (including reasonable attorneys’ fees) or agreed in settlement by You resulting from the claim.
8.3. Indemnification Procedure. Your obligations in this Section 8 (Indemnification) are subject to You 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 commercetools, at commercetools’s expense for reasonable out-of-pocket costs. You may not settle any claim without commercetools’s prior written consent if settlement would require commercetools to admit fault or take or refrain from taking any action. commercetools may participate in a claim with its own counsel at its own expense.
Section 9 - Term and Termination
9.1. Term. This Agreement is effective upon Your subscription under the Azure Marketplace and shall continue for the term set out therein (the “Term”). If You would like to use the Service or any other commercetools product or services after the Term, You must contact commercetools to agree to such further use under a separate contract.
9.2. Termination. 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. Expiration. At the end of the Term, all rights to access or use the Service shall end automatically and without notice. You acknowledge and agree that commercetools has no obligation to retain Your Customer Data, Your content and applications, and that Your Customer Data, content and applications will be irretrievably deleted, following the end of the Term.
Section 10 - General Terms
10.1. Assignment. You may not assign this Agreement, without commercetools prior written consent; provided that in connection with a merger, reorganization, or sale of all or substantially all of Your assets, this Agreement shall automatically transfer to the successor in interest. In which case, You shall provide notification that such transfer has occurred within thirty (30) days of such event.
10.2. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by the applicable law as follows, based on Your location:
If Your physical address is in the European Union or European Economic Area (except Ireland): the law of the Federal Republic of Germany shall apply. You irrevocably submit to the exclusive jurisdiction of the courts of Munich.
If Your physical address is in Ireland, the United Kingdom, the Middle East or Africa: the laws of England and Wales shall apply. You submit to the exclusive jurisdiction of the courts of London.
If Your physical address is in the United States of America, Canada or elsewhere in North America or South America the laws of the State of New York shall apply. You irrevocably submit to the exclusive jurisdiction of the courts of the City of New York, County of New York.
If Your physical address is in Australia, New Zealand, India or elsewhere in Asia: the laws of the state of New South Wales shall apply, You irrevocably submit to the exclusive jurisdiction of the courts of Sydney.
10.3. Notices. commercetools may give notice to You pursuant to the terms of this Agreement by electronic mail to Your email address on record in commercetools’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in commercetools’s account information.
10.4. Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. Notwithstanding the foregoing, commercetools may make changes to the Service, the Service Trial and this Agreement at any time, and You agree that Your continued use of the Service constitutes Your acceptance of, and agreement to such changes.
10.5. Survival. The provisions of Section 1.6 (Restrictions), Section 4 ( Disclaimers and Exclusions of Warranties), Section 6 (Feedback and Ownership), Section 7 (Limitation of Liability), Section 8 (Indemnification), Section 9.3 (Expiration), Section 10 (General Terms) of this Agreement shall survive the expiration or termination of this Agreement, in addition to any other provisions of the Agreement required to give effect to those provisions.
10.6. Force Majeure. Neither party is responsible for events outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event.
10.7. Independent Contractors. commercetools and You are each an independent contractor and the parties agree that no partnership, joint venture or agency relationship exists between the parties by virtue of this Agreement. Each party is responsible for paying its own employees, including employment related taxes and insurance. You are responsible for obtaining at Your sole expense any rights and consents from third parties necessary for Your Customer Data, Your content, Your applications and other vendors’ products provided by You and used in conjunction with the Service, including all rights and consents to such content, applications and products necessary for commercetools to provide the Service.
10.8. 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.
10.9. Anti-Corruption and Export. You will, and will cause Your 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 You. “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.
“commercetools” refers to commercetools entity as outlined above in the introductory section of this Agreement, its predecessors and successors, affiliates, employees, agents, attorneys, representatives, or any other persons acting or purporting to act on their behalf.
“Customer Data” means the data, information, or content that is sent to the Service.
“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/.
“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 the Azure Marketplace order.
““Users” means those individuals authorized by You or on Your behalf, solely and strictly to the extent permitted by commercetools pursuant to the terms of this Agreement, to use the Service during Term.
"You” or “Your" refers to the individual or entity that has agreed to the terms and conditions of this Agreement and that has otherwise used or is using the Service under its terms