IMPORTANT – PLEASE SCROLL DOWN AND READ THE FOLLOWING CAREFULLY BEFORE DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE OR SERVICE.
THIS IS A LEGAL AGREEMENT (“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 ZEELAND):
commercetools AU Pty Ltd, Level 18, 227 Elizabeth street, Sydney, NDW 2000;
(hereinafter referred to collectively as “commercetools”)
BY DOWNLOADING, INSTALLING, ACCESSING AND/OR USING THE SOFTWARE OR SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS.
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 THIS SOFTWARE OR SERVICES.
- “commercetools” refers to commercetools entity as outlined above in the header, its predecessors and successors, affiliates, employees, agents, attorneys, representatives or any other persons acting or purporting to act on their behalf.
- “Platform” refers to commercetools´ platform, used to deploy eCommerce applications for various sales channels of operators of online shops and other digital sales platforms.
- “commercetools Rights” means any and all right, title and interest in any and all presently owned, in development and/or existing: (1) trademarks, trademark applications, trade names, service marks, service mark applications, inventions, copyrights, copyright applications, patents, patent applications, know-how and trade secrets, including but not limited to that used in or in connection with the Platform (collectively, the “commercetools IP”); (2) technology and software incorporated or used in connection with Platform, including but not limited to the Platform itself; (3) presentations, modifications, enhancements and copies of the Platform; (4) confidential or proprietary information including confidential or proprietary processes, methods, designs, database designs, formulae, know-how and integration methods embodied in the commercetools IP; and (5) intellectual property rights similar to any of the foregoing, copies and tangible embodiments thereof (in whatever form or medium, including electronic media), derivatives, enhancements, modifications, and programming code including source code.
- ”You” and “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 Platform under its terms.
- “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 Platform during the Trial Period (as defined below).
B. 60 Days Trial Period
This Agreement is effective upon your acceptance of this Agreement (the “Effective Date”) and will terminate automatically and without notice sixty (60) days from the Effective Date unless ended earlier in accordance with the terms and conditions of this Agreement (the “Trial Period”). During the Trial Period, you will be provided limited access to the Platform strictly for limited, non-commercial use to test and evaluate the Platform in accordance with the rights granted below (the “Platform Trial”).
If you would like to use the Platform or any other commercetools product or services after the Trial Period or for any other purposes during the Trial Period, you must contact commercetools to agree such further use under a separate contract which might be chargeable.
C. Rights Granted
For the duration of the Trial Period, you have the nonexclusive, nontransferable, non-assignable, limited license to use the Platform Trial, subject to the terms of this Agreement, and solely for your internal business purposes to test and evaluate commercetools’ Platform offering for one (1) project and not for any production or commercial purposes. You may not utilize the Platform Trial in conjunction with or in any way related to any of your existing, past or prospective customers. You are responsible for your users’ compliance with this Agreement.
D. Ownership and Restrictions
commercetools retains all ownership and rights in and to the commercetools Rights.
You may not, and may not cause or permit others to:
- utilize the Platform Trial beyond the Trial Period or apply for a new Platform Trial immediately following the end of a Trial Period.
- remove or modify any program or services markings or any notice of commercetools’ or its licensors’ proprietary rights;
- make the commercetools Rights available in any manner to any third party;
- modify, make derivative works of, disassemble, decrypt, decompile, reverse engineer, reproduce, distribute, republish or download any part of the commercetools Rights or access or use the Platform in order to build or support, and/or assist a third party in building or supporting, products or services competitive to commercetools;
- perform and/or disclose results of any benchmark tests, performance tests or security tests of the Platform without commercetools’ prior written consent;
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Platform or any of the commercetools Rights available to any third party; and/or
- export, publicize or use the Platform Trial for any commercial purpose.
E. Disclaimers and Exclusions of Warranties
THE PLATFORM TRIAL 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 PLATFORM, INCLUDING BUT NOT LIMITED TO SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS AND (B) MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
COMMERCETOOLS DOES NOT GUARANTEE THAT (A) THE PLATFORM TRIAL WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT COMMERCETOOLS WILL CORRECT ALL ERRORS IN THE PLATFORM TRIAL; (B) THE PLATFORM TRIAL 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 PLATFORM TRIAL, 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.
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.
COMMERCETOOLS RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE PLATFORM AT ANY TIME WITHOUT NOTICE.
F. Support Services
The Platform Trial provides an opportunity to experience the Platform before purchasing. The Platform Trial is provided as a convenience and you agree that commercetools is not obligated to provide any technical support, phone support, or updates.
G. User Accounts
To use the Platform Trial, you must have a commercetools account. You are required to provide truthful and accurate information. Don’t impersonate anyone else while creating your account or use any pseudonyms. If your information changes at any time during the Trial Period, please update your account or notify commercetools of those changes.
You may not share your account or access to the Platform Trial. You are responsible for identifying and authenticating all users, for approving access by such users, for controlling against unauthorized access by users, and for maintaining the confidentiality of usernames, passwords and account information. You are responsible for all activities that occur under your and your users’ passwords or accounts or as a result of your or your users’ use of the Platform Trial, and you agree to notify commercetools immediately of any unauthorized use. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Platform Trial.
H. Restrictions on Use of the Platform Trial
You agree not to use or permit use of the Platform Trial for the following purposes, including by uploading, emailing, posting, publishing or otherwise transmitting any material: (a) use for any security or performance testing in order to probe, scan or attempt to penetrate or ascertain the security or performance of the Platform or any part thereof; (b) to menace or harass any person or entity or cause damage or injury to any person, entity or property; (c) to involve the publication of any material that is false, defamatory, harassing or obscene, (d) to violate any privacy rights, specifically You agree not to upload, publish or otherwise transmit any personal data/personal information of third parties (data subjects); (e) to promote bigotry, racism, hatred or harm, (f) to constitute unsolicited bulk e-mail, “junk mail,” “spam” or chain letters; (g) to constitute an infringement of intellectual property or other proprietary rights, or (h) to otherwise violate applicable laws, ordinances or regulations.
commercetools has no obligation to monitor your content but may do so at its sole discretion. In addition to any other rights afforded to commercetools under this Agreement, commercetools reserves the right to remove or disable access to any material that violates the foregoing restrictions. commercetools shall have no liability to you in the event that commercetools takes such action.
You remain solely responsible for your regulatory compliance in connection with your use of the Platform Trial. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your content and information. You warrant and represent that your content and data do not contain any viruses, Trojan horses, worms or other components that would limit or harm the functionality of a computer.
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.
YOU AGREE TO DEFEND, HOLD HARMLESS AND INDEMNIFY COMMERCETOOLS AGAINST ANY CLAIM ARISING OUT OF A VIOLATION OF YOUR OBLIGATIONS UNDER THIS SECTION.
I. Fees and Taxes
The Platform Trial being provided under this Agreement is done so free of charge solely and strictly during the Trial Period.
J. 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).
“Feedback” shall mean any input regarding commercetools products and/or services (including the Platform Trial), 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.
L. End of Trial Period
The use of the Platform Trial provided under this Agreement shall be provided for the Trial Period above unless earlier terminated in accordance with this Agreement. commercetools may terminate your password, account, and access to or use of the Trial Platform at any time for any reason.
At the end of the Trial Period, all rights to access or use the Platform shall end automatically and without notice. You acknowledge and agree that commercetools has no obligation to retain your content and applications, and that your content and applications will be irretrievably deleted, following the end of the Trial Period. Provisions that survive termination or expiration of this Agreement are those which by their nature are intended to survive.
M. 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.
You agree to comply strictly and fully with all applicable export laws and regulations (collectively “Export Laws”) to assure that your use of the Platform Trial in no way violates any aspect of the Export Laws and/or that your use of the Platform Trial in no way is used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. You hereby agree to defend, indemnify and hold harmless commercetools, including its employees, officers, directors, and agents, against any liability, loss, damage, or cost (including attorneys’ reasonable fees) arising out of or in connection with any such export, re-export, or import.
- 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 be 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 content, your applications, and other vendors’ products provided by you and used in conjunction with the Platform Trial, including all rights and consents to such content, applications and products necessary for commercetools to provide the Platform Trial.
- This Agreement shall be governed by the applicable law as follows, based on your location:
- EMEA: The law of the Federal Republic of Germany shall apply, ousting the UN Convention on the International Sale of Goods. Sole place of jurisdiction for all disputes shall be Munich, Germany.
- North, Central and South America: This Agreement is governed by and shall be construed in accordance with the law of the State of New York, excluding any conflict-of-laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction. Each of the Parties hereby consents to the jurisdiction of any state or federal court located within the County of New York, State of New York, and irrevocably agrees that all actions or proceedings relating to this Agreement must be litigated in such courts, and each of the Parties waives any objections which it may have based on improper venue or forum non conveniens to the conduct of any proceeding in such court.
- APAC (including AUSTRALIA/NEW ZEELAND): This Agreement is governed by the laws of the state of New South Wales. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction in the State of New South Wales in connection with all matters concerning this Agreement, unless other places of jurisdiction apply under mandatory law.
- commercetools may give notice to you pursuant to the terms of this Agreement by electronic mail to your e-mail address on record in commercetools’ account information or by written communication sent by first class mail or pre-paid post to your address on record in commercetools’ account information.
- You may not assign this Agreement, give or transfer the services or an interest in them to another individual or entity.
- Except for actions arising out of your breach of commercetools Rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
- commercetools may use software tools to audit and otherwise request information from you regarding your use of the Platform Trial. You agree to cooperate with any commercetools audit and provide reasonable assistance and access to information.
- You understand and agree that commercetools’ business partners, including any third-party firms retained by you to provide consulting services, are independent of commercetools and are not commercetools’ agents. commercetools is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a commercetools subcontractor on an engagement ordered under this Agreement.
P. Entire Agreement
You agree that this Agreement including the information which is incorporated into this Agreement by written reference is the complete Agreement for the Platform Trial, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral.
If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement.
This Agreement may not be modified, and the rights and restrictions may not be altered or waived except by a written and signed authorization by official representatives of commercetools.
Notwithstanding the foregoing, commercetools may make changes to the Platform, the Platform Trial and this Agreement at any time, and you agree that your continued use of the Platform Trial constitutes your acceptance of, and agreement to such changes.
commercetools – 60 Day Trial Agreement v 1.1. – All Regions
as of June 23, 2020