§ 1 General
- All the services presented below and associated with the Software are being offered by:
- In accordance with § 312 g Para. 2 clause 2 of the BGB, the Customer agrees to waive its rights under § 312g Para. 1 clause 1 nos. 1 to 3 and clause 2 of the BGB (including compliance with notification requirements for transacting business electronically).
§ 2 Scope of Services
- The software is offered in various packages each containing a different scope of services. The functional scope of each package and the technical requirements for the software can be viewed at commercetools.com.
- The Customer shall receive the non-exclusive right, limited in time to the term of the contract, to access the Software using telecommunication via a programming interface and a web-based Customer portal and to use it per the terms and conditions below.
- The Customer is free to use other software during the term of the contract, including any that is in direct competition with the Software covered by this agreement.
- commercetools reserves the right to improve and further develop the Software during the affiliation. The improvements and further development of the Software shall also constitute part of the service as soon as they are available to the Customer as part of an update. The right of use granted to the Customer under this contract shall apply for the respective current release of the Software, including previous versions. The right of use also includes the programming interface. This interface is an open interface in the form of a REST API that responds in JSON.
- In the event that provision of a new version of the Software includes functional changes or enhancements, commercetools shall notify the Customer of these in text format (change log).
- commercetools shall provide open-source software to the Customer for easy design of the front-end, including software developer kits, command line interfaces, and templates for its own projects. The open-source software is subject to the provisions of the respective applicable license agreement (e.g., MIT, GPL), and must be observed by the Customer during use. commercetools assumes no warranty or liability for the open-source software or templates provided.
§ 3 Provision of Software and Data Storage Space
- commercetools maintains the most current version of the Software with all functions as described at commercetools.com on one or more central data processing units (hereinafter “servers”).
- commercetools maintains a sufficient amount of storage space on the server for the data generated by the Customer using the Software and/or needed by the Customer to use the Software (hereinafter “Data”).
- The Software and the Data are backed up on the server regularly, at least once per calendar day. In the event of loss of data, commercetools is obligated to restore the Data from the most recent backup point. No claim by the Customer beyond this shall be accepted. In this regard, the Customer is obligated to make its own direct backup of all Data transferred to the Software. An export function is available for this purpose.
- At such time as the Customer deletes its account, commercetools shall delete its Data unrecoverably from the server. However, the Customer shall receive a warning notice and a prompt to export its data prior to deletion.
- The handover point for the Software and Data is the router output of the respective server computing facility.
- The system requirements for use of the Software by the Customer may be viewed at commercetools. commercetools is not responsible for the quality of the required hardware and software or for the telecommunications connection between commercetools and the Customer.
§ 4 Warranty, Accessibility, Service, and SLA
- The availability of the software through the platform and API shall be at least 99% on average each month. Maintenance periods are considered to be periods of availability.
- If this minimum monthly availability is not met, the client shall receive a credit note as follows:
- If actual availability falls short of the guaranteed level by 5% or more (availability below 94.5%), the client shall receive a credit note of 50% of the fee for the month in which the required availability level was not met.
- If actual availability falls short of the guaranteed level by 10% or more (availability below 89.5%), the client shall receive a credit note for 100% of the fee for the month in which the required availability level was not met.
- Once granted by commercetools, the credit note will be offset against the next monthly fee payable by the client. This is the only means by which commercetools will grant credit. The client has no further claims to the granting of credit, in particular not for a cash reimbursement.
- Beyond the credit note, the client has no further claims against commercetools for failure to meet the stated availability targets, and in particular not for payment of damages. This does not apply in cases of intentional malfeasance or gross negligence or in the event of physical injury.
- The client must report the periods of downtime to commercetools’ support staff by e-mail within a month of their occurrence. This notification must specify the date and time of each outage, and verify the claims with corresponding log files. commercetools will verify the report within a week and either issue a credit note or, if credit is denied, provide justification for the denial.
- commercetools will issue no credits for downtime:
- caused by misconduct on the part of the client;
- caused by the client’s hardware or software, in particular external DNS routing problems, attacks on the network or mail infrastructure such as DoS or virus attacks, and outages of the client’s access provider;
- for which commercetools bears no responsibility, in particular cases of force majeure;
resulting from the blocking of the client’s access by commercetools in accordance with § 7 Para. 4 of this agreement.
§ 5 Registration, Packages and Trial
- Prior registration of a Customer account is required in order to access and use the Software. No right to register exists.
- The Customer must provide the data required for use at registration.
- The Customer is obligated to provide truthful information only.
- The Customer must keep the data provided to it, particularly the password, strictly confidential and not disclose it to third parties. At such time as the Customer becomes aware that unauthorized individuals have compromised its access, it must notify commercetools immediately of the fact. The access will then be temporarily blocked and the Customer issued a new password.
- In the course of registration, the client selects the package he/she wishes to use. There, the scope of the services included and the fees for the package are indicated to the client. The client may switch between packages at any time (to a larger or a smaller package). In the month of the switch-over, the fees are calculated proportionate to the actual periods of use.
- However, switching to a smaller package is only possible if the limits of this package are complied with. To this end, it may be necessary, e.g., that the client remove products from his/her shop until the permissible number of products is reached.
- When registering, the client may initially book the Lean package for a free test period (trial period) of 60 days. After 60 days, the client has the option to extend the trial for another 60 days by means of a link he/she will receive by e-mail. After the end of the trial, the client may no longer use the package free of charge. In order to transfer his/her data and continue using the software, the client must purchase a package upon the expiry of the trial period.
§ 6 Customer Obligation
- The Customer is obligated to check the technical requirements listed at commercetools.com prior to using the Software. The Software may be used only under the conditions indicated there.
- The Customer shall be solely responsible for any content used by it, e.g., legal text and item descriptions. The client undertakes not to store or otherwise use any illegal content in connection with the use of the software. commercetools shall be under no obligation to check the contents for completeness, correctness, and violation of third-party rights or violation of lawful regulations.
- If offering services online using the commercetools software, the client shall fulfil all relevant legal obligations.
- The client undertakes to store no customer data (in particular credit card data) requiring PCI certification. The client is only permitted to store payment reference data.
- The Customer is prohibited from conducting transactions that are intended to compromise system or network security. Violations will be prosecuted under civil and criminal law.
- The Customer agrees not to decompile, disassemble or reverse compile the Software, or to reverse assemble or reverse engineer the Software from the object code to the source code (or to attempt, authorize, or permit such actions) in any way or for any purpose without the prior written permission of commercetools. The Customer’s rights by law remain unaffected hereby.
- The Customer grants commercetools usage rights to store and process the contents and Data required for proper operation of the Software as an e-commerce back-end within the framework of SaaS exclusively for this purpose.
- The Customer agrees that all important notices affecting the Software usage relationship shall be sent by e-mail, provided no other format is stipulated by law.
§ 7 Pricing and Payment
- The fees for the various packages offered can be viewed at commercetools.com. For large clients requiring larger capacities, commercetools will create an individual offer on request. In such a case, the agreement will be concluded on the basis of the conditions negotiated between the parties, and the present conditions shall apply in a supplementary capacity.
- All prices apply plus the current statutory VAT.
- Payment is only accepted via credit card. The credit card provided will always be charged on the first month for the preceding month.
- In the event that commercetools is unable to charge the credit card provided, the client will be requested via e-mail to update the credit card information in his/her customer account. If, after 30 days, commercetools is unable to charge the credit card provided, the client’s access to the software will be blocked until payment has been received.
§ 8 Liability
- commercetools shall be liable for damages in full amount, regardless of the legal basis, only in the case of wrongful intent or gross negligence.
- In the event of ordinary negligence, commercetools shall be liable only for damages in the contractually typical and foreseeable amount.
- In the event of damages arising from injury to life, limb, or health, commercetools’ liability shall likewise be limited to the actual damage amount in the case of a violation due to ordinary negligence. Any liability under the Produkthaftungsgesetz [Product Liability Act] shall remain unaffected as well by the foregoing liability limitations.
- The liability limitation shall apply as well in the case of culpability of an agent of contract of commercetools.
§ 9 Term and Cancellation
- The contract is valid for an indefinite term and may be terminated at any time at the end of a month.
- The right of the Parties to extraordinary cancellation for just cause remains unaffected hereby. Just cause for extraordinary cancellation exists specifically when
a Party repeatedly violates its contractual obligations under this contract, despite warning; a Party commits a tortious act in connection with this contract; one of the Parties ceases business operations partially or completely, and continued operation is not ensured by a direct legal successor;
- Cancellation must be made in writing. Cancellations by fax are deemed to be in writing.
- The Customer’s contractual rights of use shall end upon termination of the contract for whatever reason.
§ 10 Privacy Protection and Data Security
- commercetools shall collect, store, and process personal information exclusively in strict compliance with the provisions of the BDSG [German Federal Personal Privacy Act], the TMG [German Telecommunications Services Act], and any other legal regulations relevant to protection of personal information.
- commercetools shall conduct contract data processing as defined under § 11 of the BDSG as part of the services provided to the Customer under this contract. Any corresponding contract data processing agreement in accordance with the legal requirements of the BDSG shall require a special agreement between the Customer and commercetools.
- All communication shall be encrypted by SSL and use the standard authentication procedure OAuth 2.
- In the event the Customer objects, then the terms in effect at the time the contract was concluded shall remain in effect until the end of the usage relationship. In this case, commercetools shall retain the right to cancel the contract within one month after receipt of the objection.
§ 12 Miscellaneous Provisions
- The foregoing terms and conditions encompass the complete and final governance of all rights and duties of the Parties to use the Software during the BETA phase. They shall replace all prior agreements and correspondence. No verbal collateral agreements shall exist.
- Amendments and supplements to these terms shall be without effect unless made in writing; this shall apply as well to any waiver of the requirement itself that changes be made in writing.
- The laws of the Federal Republic of Germany shall apply to the exclusion of the UN CISG. The legal jurisdiction for any disputes arising from the contract relationship shall be Munich.
- No Party to this contract may transfer its rights under this contract to third parties without the prior written permission of the other Party. However, permission for such transfer shall not be refused without just cause. Transfer of claims to payment shall not require permission.
- Offsets are permitted only in the event of undisputed or legally established counterclaims.