Pass-Through Terms relating to the re-sale of the commercetools Service
These Pass-Through Terms (the “Agreement”) are directly between commercetools and End Customer and govern all use of commercetools e-commerce software-as-a-service products as purchased by the End Customer through a Reseller.
Any terms and conditions of the End Customer that are referred to in any declaration of acceptance or Purchase Order between End Customer and its Reseller shall not apply to commercetools and commercetools expressly rejects their validity or applicability.
Capitalized terms are defined at the end of this Agreement.
Section 1 - The Service
1.1. Use of the Service. commercetools grants to End Customer during the Term the right to use and access the Service for End Customer’s internal business purposes only in accordance with the Documentation, the Order Form, and this Agreement.
1.2. End Customer Users. The employees and contractors of End Customer may access and use the Service on End Customer’s behalf (each, a “User”). End 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 End 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. End 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 End Customer in production, all restrictions, limitations and End Customer obligations under the Agreement apply.
1.7. Restrictions. End 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 End 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 End Customer as set out in the Documentation.
Section 2 - End Customer Data; Privacy; Security
2.1. End Customer Data. End Customer selects in the ordering document between Reseller and End Customer the data region where the Service will be hosted. End Customer represents and warrants to commercetools that it has all necessary rights, consents, and permissions to use and submit End 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 End Customer Data for all of commercetools customers across the commercetools multi-tenant architecture. The End 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. End Customer Data Export; Back-Ups. At any time during the Term, End Customer may export End 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. End Customer is responsible for its own back-ups to meet its regulatory and internal requirements (such as archiving).
2.4. Obligations. End Customer is responsible for End Customer Data, including its content and accuracy. End 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) End Customer breaches Section 1.7 (Restrictions); (b) the applicable fees have not been paid by Reseller when due after commercetools gives Reseller 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 End 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 End 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 Commercial Terms. End Customer will pay fees to the Reseller as agreed between End Customer and the Reseller. End Customer’s order details (e.g., scope of use and fees) will be as stated in the ordering document placed by the Reseller with commercetools on End Customer’s behalf. Reseller is responsible for the accuracy of the ordering document. commercetools may suspend or terminate End Customer’s rights to use the Service if it does not receive the corresponding payment from the Reseller. If End Customer is entitled to a refund under this Agreement, commercetools will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to End Customer, unless otherwise specified. The amount paid or payable by Reseller to commercetools for End Customer’s use of the applicable Service under this Agreement will be deemed the amount paid or payable by End Customer to commercetools under this Agreement for purposes of Section 7 (Limitation of Liability). commercetools is not responsible for any acts, omissions, products or services provided by Reseller.
3.2 Relationship with commercetools. These terms govern the use of the Service by End Customer. The Reseller is not authorized to modify this Agreement or make any promises or commitments on commercetools’s behalf, and commercetools is not bound by any obligations to End Customer other than as set forth in the Agreement. commercetools is not party to (or responsible under) any separate agreement between End Customer and Reseller. commercetools is not responsible for any acts, omissions, products or services provided by Reseller.
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 End Customer that the Service will perform materially as described in the Documentation. If commercetools breaches this warranty and End 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, commercetools may terminate the applicable Service, in which case commercetools will refund to End Customer any such pre-paid, unused fees for the terminated portion of the Term. These procedures are End 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 these terms 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, End Customer retains all intellectual property and other rights in Customer Data. Except for End 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 End Customer or Reseller 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 commercetools 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, commercetools’ 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 the affected Order Form between commercetools and the Reseller 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) End 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 End Customer from and against any third-party claim to the extent alleging that the Service, when used by End Customer as authorized, infringes a third-party’s patent, copyright, or trademark. commercetools will hold harmless and indemnify End Customer against any damages or costs awarded against End Customer (including reasonable attorneys’ fees) or agreed in settlement by commercetools resulting from the claim.
8.2. Indemnification by End Customer. End Customer will defend commercetools from and against any third-party claim to the extent alleging that the End Customer Data or the combination of End 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 End Customer’s breach or alleged breach of Section 1.7 (Restrictions). End Customer will hold harmless and indemnify commercetools against any damages or costs awarded against commercetools (including reasonable attorneys’ fees) or agreed in settlement by End 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 End 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 with the Reseller 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 End 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 End Customer designs, plans, specifications or instructions; or (4) if End 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 with the Reseller and / or commercetools.
9.2. Either party may terminate this Agreement (including all Order Forms with the Reseller) 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 End Customer’s material breach under Section 9.2, End Customer will promptly pay commercetools any outstanding fees or expenses due and any fees for the terminated portion of the Term. If End Customer terminates this Agreement for commercetools’s material breach under Section 9.2, then, at End Customer’s request, commercetools will refund to End Customer any pre-paid, unused fees for the terminated portion of the Term. In no event will any termination relieve End 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. End 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 with the Reseller.
10.2 Delivery; Use. End Customer will give commercetools timely access to End Customer materials, systems, and other resources (“End Customer Materials”) reasonably needed to provide the Professional Services, and if End 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. End Customer represents and warrants to commercetools that it has all necessary rights, consents, and permissions to provide the End Customer Materials to commercetools. End Customer, as between the parties, retains all ownership rights in the End Customer Materials and grants to commercetools a limited right to use and access the End Customer Materials only to provide the Professional Services to End Customer. commercetools will treat the End Customer Materials as Confidential Information. Subject to payment of the applicable fees and a current subscription to the Service, End 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 with the Reseller, 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 End Customer that commercetools will perform any Professional Services in a professional and workmanlike manner. If commercetools breaches this warranty and End 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 with the Reseller, in which case commercetools will refund to End Customer any such pre-paid, unused fees for the terminated portion. These procedures are End 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 with the Reseller.
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, 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:
If your physical address as set out in the Order Form with the Reseller 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.
If your physical address as set out in the Order Form with the Reseller 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.
If your physical address as set out in the Order Form with the Reseller 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.
If your physical address as set out in the Order Form with the Reseller 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.
End 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 End Customer shall be sent to the email address set out in the Order Form with the Reseller. Either party may update its address with notice to the other. commercetools may also send operational notices to End Customer by email or through the Service.
11.4. Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the event of any conflict or inconsistency between the Order Form with the Reseller and this Agreement, this Agreement will prevail. End 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 End 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 End 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 End 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 End Customer consenting to such changes in writing or (ii) upon End 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 End Customer objects to the updated Agreement, as End Customer’s exclusive remedy and without penalty, End Customer may choose not to renew in accordance with the renewal terms set out in the Order Form with the Reseller.
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 with the Reseller 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 End 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.
“End 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 End 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 End Customer and the Reseller 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.
“Reseller“ means a company that has entered into a reseller agreement with commercetools and that is then authorized to market the Service to its customers.
“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 End 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 End 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 End Customer at law or contract, commercetools shall refund the fees paid by the End 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 End Customer to use the Service in accordance with the Agreement, the End Customer shall be entitled, at its discretion and without prejudice to any other rights and remedies available to the End 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 the affected Order Form between Reseller and End Customer 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) End 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 End Customer’s material breach under Section 9.2, End 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 End Customer. If End Customer terminates this Agreement for commercetools’s material breach under Section 9.2, then, at End Customer’s request, commercetools will refund to End Customer any pre-paid, unused fees for the terminated portion of the Term. In no event will any termination relieve End 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.