General Terms and Conditions

1. General provisions and subject of the services

1.1 The Provider makes web-based software (software as a service) including maintenance and servicing available to its customers in accordance with these General Terms and Conditions.

1.2 The services offered by the Provider are directed exclusively at entrepreneurs within the meaning of § 14 of the German Civil Code (a natural or legal person or a partnership with legal capacity which, when entering into a legal transaction, acts in the exercise of its commercial or independent professional activity) and at freelancers. No contracts are concluded with consumers or private individuals within the meaning of § 13 of the German Civil Code.

1.3 The Provider does not recognise any terms and conditions used by the customer that deviate from these General Terms and Conditions, subject to express consent. Individually agreed services take precedence over the provisions of these General Terms and Conditions.

2. Subject matter of the contract and services

2.1 The Provider makes software available to its customers (hereinafter the “Software”) that aims to improve the performance of the website. The Software offers various functions for e-commerce projects. By using these functions, website operators can increase the performance of their websites. In all other respects, the current scope of functions of the Software is governed by the service description in the offer or on the website. The subject matter of the contract is exclusively the provision of this Software for use via the internet and the granting of storage space on the Provider’s servers. For this purpose, the Provider sets up the Software on a server that is accessible to the customer via the internet.

2.2 The Provider remedies all software errors without delay, as far as technically possible. An error exists if the Software does not fulfil the functions stated in the service description, delivers faulty results or otherwise does not work properly, so that use of the Software is impossible or only possible to a limited extent.

2.3 The Provider renders the services in line with the applicable state of the art. It continuously develops the Software further and will improve it by means of ongoing updates and upgrades.

2.4 The availability of the Software is 98.5 % on annual average, including maintenance work; however, availability may not be impaired or interrupted for more than two consecutive calendar days. Excluded from this are necessary regular maintenance work as well as those periods in which availability is restricted due to events for which the Provider is not responsible (for example force majeure, acts of third parties, technical problems or changes in the legal situation).

3. Rights of use in the Software

3.1 The Provider grants the customer the non-exclusive and non-transferable right to use the Software as intended within the scope of the SaaS services for the duration of the contract. The customer may only modify the Software insofar as this is covered by the intended use of the Software according to the service description applicable at the time. Reproduction of the Software is only permitted insofar as this is covered by the intended use of the Software according to the service description applicable at the time. Necessary reproduction includes loading the Software into the working memory on the customer’s server or computer, but not the installation or storage of the Software — even temporarily — on data carriers (such as hard drives or similar) of the hardware used by the customer.

3.2 The customer is not entitled to make the Software or the storage space provided available for use to a third party, in part or in full, for a fee or free of charge. Subletting the Software is expressly prohibited for the customer.

4. Granting of storage space and backups

4.1 The Provider makes storage space on a server available to the customer for storing its data. Where the storage space is limited, this is communicated to the customer upon conclusion of the contract.

4.2 The Provider ensures that the stored data can be retrieved via the internet. It is obliged to take suitable precautions against data loss and to prevent unauthorised access by third parties to the customer’s data. For this purpose the Provider will carry out regular backups and install firewalls in line with the state of the art.

4.3 The customer remains in every case the sole rights holder in the data and may at any time demand the release of individual or all data. The Provider has neither a right of retention nor a statutory lessor’s lien (§ 562 of the German Civil Code) with regard to the customer’s data.

5. Support

5.1 Application or software problems are handled by the Provider as part of support. Support is generally ensured on working days from Monday to Friday, 09:00 to 18:00. In order to be handled as quickly as possible, support requests are to be submitted via the channels of communication provided for this purpose on the Provider’s website or via the ticket system, where available. During regular business hours, support requests are generally handled chronologically, in the order in which they reach the Provider.

6. Impairment of accessibility

6.1 Adjustments, changes and additions to the Software that is the subject of the contract, as well as measures serving to identify and remedy malfunctions, will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.

6.2 The basic functions of the Software are monitored daily. Maintenance of the SaaS services is generally ensured on working days from Monday to Friday, 09:00 to 18:00. In the case of serious errors — where use of the Software is no longer possible or is seriously restricted — maintenance takes place within 3 hours of the Provider becoming aware of the error or being informed by the customer. The Provider will notify the customer of the maintenance work immediately and carry it out in the shortest possible time in line with the technical conditions. If it should not be possible to remedy the error within 12 hours, the Provider will notify the customer of this by e-mail within 24 hours, stating the reasons and the period that is expected to be required to remedy the error.

7. Obligations of the customer and contractual penalty

7.1 The customer is obliged to keep the data provided upon registration up to date at all times and to refrain from violating these General Terms and Conditions and applicable law. In particular, the customer is obliged to meet the Provider’s payment claims on time. The customer must furthermore ensure that its account is used only by the customer itself. It must treat its access data and the data it has stored as confidential and ensure that third parties have no access to its data. If the customer culpably breaches this obligation, it is itself responsible for any damage arising from this. Where the Provider prescribes further security measures before or during the contractual relationship, the customer will implement these, provided they are not unreasonable or disproportionate.

7.2 The customer is furthermore obliged to use the Software only for its intended purpose and to observe all contractual and statutory provisions when using the Software. Any use going beyond the purpose of the usage relationship is prohibited. In particular, the user is prohibited from

- registering for the Software more than once under different identities;

- disseminating false or misleading claims within the Software;

- using the Software for advertising or other commercial purposes;

- threatening, insulting or harassing other customers or otherwise infringing their rights;

- soliciting other customers for another service or attempting to do so;

- violating these General Terms and Conditions or applicable law (for example copyright and trademark law) when using the Software;

- extracting data via the Software in an automated manner (for example with crawlers)

- sending chain letters or spam messages;

- disseminating pornographic, racist, violence-glorifying or violence-trivialising, seditious, right-wing extremist, anti-constitutional content or other content within the Software that violates applicable law and public decency.

7.3 Notwithstanding the Provider’s obligation to back up data, the customer is itself responsible for entering, maintaining and backing up the data and information required to use the Software. In the event of data loss within the Software for which the Provider is responsible, the Provider’s liability is limited to the costs of restoring and re-securing that data which would also have been lost had the customer carried out a proper data backup. Insufficient data backup may result in the customer having to accept contributory negligence within the meaning of § 254 of the German Civil Code. The provisions under the heading “Liability and indemnification” remain unaffected by this paragraph.

7.4 The customer is obliged to check its data and information for viruses or other harmful components before entering them and to use virus protection programs corresponding to the state of the art for this purpose.

7.5 The content stored by the customer in the storage space designated for it may be protected by copyright and data protection law. The customer hereby grants the Provider the right to make the content stored on the server accessible to the customer when the customer retrieves it via the internet and, in particular, to reproduce and transmit it for this purpose as well as to reproduce it for the purpose of data backup.

8. Remuneration

8.1 The customer undertakes to pay the Provider the agreed fee at the agreed intervals for the provision of the Software and the granting of the storage space. Prices and tariffs are communicated to the customer before the contract is concluded.

8.2 The customer must raise objections to the invoicing of the services rendered by the Provider in writing within a period of eight weeks of receipt of the invoice, at the office stated on the invoice. After the aforementioned period has expired, the invoice is deemed to have been approved by the customer. When sending the invoice, the Provider will specifically draw the customer’s attention to the significance of its conduct.

9. Suspension

9.1 The Provider is entitled to suspend the Software if the customer is in default with at least one full instalment. The same applies if the customer is partially in default with several instalments which together correspond to one full instalment.

9.2 The Provider is furthermore entitled to suspend the Software immediately if there is reasonable suspicion that the stored data violates applicable law or these General Terms and Conditions. Reasonable suspicion of unlawfulness and/or an infringement of rights exists in particular if courts, authorities and/or other third parties inform the Provider of such a suspicion. The Provider must inform the customer of the suspension and the reason for it without delay. The suspension is lifted as soon as the suspicion has been dispelled.

9.3 Suspensions do not affect the term of the contract and do not release the customer from its obligation to pay.

10. Warranty for defects

The Provider warrants the functionality and operational readiness of the Software in accordance with the provisions of this contract and otherwise in accordance with the statutory provisions on warranty for defects.

11. Liability and indemnification

11.1 The Provider is liable without limitation on any legal ground in cases of intent or gross negligence, in cases of intentional or negligent injury to life, body or health, on the basis of a warranty promise insofar as nothing else is stipulated in this respect, or on the basis of mandatory liability such as under the German Product Liability Act. If the Provider negligently breaches a material contractual obligation, liability is limited to the damage typical for this type of contract and foreseeable, unless liability is unlimited pursuant to the preceding sentence. Material contractual obligations are obligations which the contract imposes on the Provider according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the customer may regularly rely. In all other respects, liability on the part of the Provider is excluded.

11.2 The above liability provisions also apply with regard to the Provider’s liability for its vicarious agents and legal representatives.

11.3 The customer indemnifies the Provider against any claims by third parties — including the costs of legal defence in their statutory amount — asserted against the Provider on account of unlawful conduct or conduct in breach of contract on the part of the customer.

12. Term, termination

12.1 Subject to deviating provisions, the contract has a minimum term of 1 or 12 months. With a minimum term of 12 months (annual contract), the notice period is 3 months. With a minimum term of one month (monthly contract), notice of termination must be given no later than 1 week before the end of the term. If the contract is not terminated in good time as of the end of the term, it is automatically extended by the term originally agreed, that is by a further month in the case of monthly contracts and by a further 12 months in the case of annual contracts. The right to extraordinary termination without notice for good cause remains unaffected. The Provider is entitled to terminate without notice in particular if the customer fails to make payments due despite a reminder and the setting of a grace period, or intentionally or negligently breaches the material contractual provisions on the use of the Software.

12.2 Fees due and paid for booking periods that have not been fully used or have only begun (for example due to termination) are not refunded or remain owed; statutory mandatory claims for reimbursement — in particular on the basis of mandatory liability, withdrawal, avoidance or warranty for defects — remain unaffected.

13. Release and deletion of data after termination of the contract

Upon termination of the contractual relationship, the Provider will without delay release to the customer all data stored in the storage space assigned to it and subsequently delete that data from its systems, unless otherwise prescribed by contract or by law. The data is released, at the customer’s choice, either by handing over data carriers or by transmission via a data network. The customer has no claim to also receive the software suitable for using the data.

14. Confidentiality and secrecy

14.1 The Provider undertakes to maintain the strictest secrecy regarding all confidential matters that come to its knowledge in the course of the preparation, performance and fulfilment of this contract, in particular the customer’s trade or business secrets, and neither to pass these on nor to exploit them in any other way. This applies with regard to any unauthorised third parties, that is also with regard to unauthorised employees of both the Provider and the customer, unless the disclosure of information is necessary for the proper fulfilment of the Provider’s contractual obligations. In cases of doubt, the Provider will obtain the customer’s consent before any such disclosure.

14.2 The Provider undertakes to agree a provision identical in content to the preceding paragraph with all employees and subcontractors engaged by it in connection with the preparation, performance and fulfilment of this contract.

15. Final provisions

15.1 The contracts concluded between the Provider and the customers are governed by the substantive law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

15.2 Where the customer is a merchant or has no general place of jurisdiction in Germany, the parties agree on the Provider’s registered office as the place of jurisdiction for all disputes arising from the present contractual relationship. Sentence 1 does not apply if an exclusive place of jurisdiction is established for the dispute.

15.3 The Provider is entitled to amend these General Terms and Conditions for objectively justified reasons (for example changes in case law, the legal situation, market conditions or corporate strategy) and subject to a reasonable notice period. Existing customers are notified of this by e-mail no later than two weeks before the change takes effect. If the existing customer does not object within the period set in the notice of change, its consent to the change is deemed to have been given. If the customer objects, the changes do not take effect; in this case the Provider is entitled to terminate the contract extraordinarily as of the date on which the change takes effect. The notification draws attention to the intended change to these General Terms and Conditions, to the period and to the consequences of objecting or of failing to object.

15.4 The attached General Data Processing Terms become part of this contract.

Version: January 2024