These General Terms and Conditions of Trade (hereinafter referred to as “GTC”) of Shopware AG, Ebbinghoff 10, 48624 Schöppingen (hereinafter referred to as “Shopware”), shall apply exclusively. Any terms and conditions of the customer that contradict or deviate from these GTC shall not be recognised by Shopware unless Shopware should have explicitly consented to the validity thereof in writing. These GTC shall also apply to cases in which Shopware, having knowledge of terms and conditions of the customer that contradict or deviate from these GTC shall affect the supply to the customer without reservation and/or perform the service for the customer without reservation.
These GTC shall only apply towards business enterprises, public law entities or special funds under public law as defined in § 310 Paragraph 1 BGB (German Civil Code).
2. Service Description, Object of the Contract, Conclusion of the Contract
All offers made by Shopware shall only apply towards business enterprises, public law entities or special funds under public law as defined in § 310 Paragraph 1 BGB (German Civil Code). Consumers are excluded from Shopware’s offers.
2.1 Shop Software
Shopware is the producer of the shop software “Shopware” (hereinafter referred to as “Shop Software”) and provides the customer on its internet site with information and downloads pursuant to different available editions of Shop Software for the running of an online-shop of its own.
In order to be able to use Shop Software the system requirements published by Shopware on its internet site http://en.community.shopware.com/_detail_1841.html?_ga=1.57779759.484518866.1444734344 must be fulfilled at that of the customer. Otherwise it shall not be possible to use the software in an error-free manner.
Shopware reserves for itself the rights of ownership and of copyright to illustrations, drawings, calculations and any other documents. This also applies to written documents that Shopware describes as “confidential”. Such documents may only be passed on to third parties with the explicit written consent of Shopware.
Guarantees require the explicit and written confirmation of the management of Shopware.
Shopware shall be entitled to offer Shop Software as both free and proprietary software. The respective conditions regulated in these GTC shall then apply.
If software should be handed over to the customer for demonstration and test purposes that software shall remain the property of Shopware and the rights of usage shall only be granted as simple rights of usage for the duration of the agreed test or demonstration period, a maximum of 4 weeks from the time of handing over. In the case of free test installations or demonstration versions Shopware shall only be liable for wilful intent and gross negligence. Technical safety devices may not be circumvented.
2.1.1. Free Software (Community Edition)
188.8.131.52. Service Description
Shop Software in the “Community Edition” is licensed under the Affero General Public License Version 3 (hereinafter referred to as “AGPLv3”) and shall be made available to the customer free of charge by way of a bestowal as defined in §§ 516 ff. BGB. The front end of the standard template of Shop Software is licensed under Apache License, Version 2.0.
For the "Community Edition" Shopware offers exclusively those support services listed under Sections 2.6.2-2.6.3 below.
184.108.40.206. Conditions of Usage
The customer is advised to these GTC by a link during the process of downloading the Shop Software in the “Community Edition”. The customer confirms automatically by downloading the Software that they have read and accepted these GTC.
Pursuant to Shop Software in the “Community Edition” the licensing conditions of AGPLv3 and, pursuant to the standard template of Shop Software, the MIT licensing conditions shall apply to the customer. The customer shall be required to observe these.
The licensing conditions of AGPLv3 are retrievable under “http://www.gnu.org/licenses/agpl-3.0.de.html”. The licensing conditions of the New BSD are retrievable under “https://opensource.org/licenses/MIT”.
By way of a licence Shopware grants the customer the right to use Shop Software both according to the scope of the licence itself and in the context of these contractual terms. The licensing conditions of the “Community Edition” shall not be restricted or amended by this licensing contract. All additional rights to individual software extensions that accrue from the licensing conditions pursuant to these software extensions shall explicitly not be restricted hereby. Further-reaching rights shall not be granted.
In return, the customer who uses the “Community Edition” grants Shopware without explicit approval the right, to name him as reference customer and to use his trademarks for advertising purposes.
The liability of Shopware when the “Community Edition” is deployed is restricted to wilful intent and gross negligence. Neither shall Shopware be liable for errors in Shop Software which are caused by any amendments to the source code undertaken by either the customer themselves or by any third party commissioned by the customer. Claims arising from defects are excluded when the “Community Edition” is provided, unless the defect has been concealed fraudulently.
Any usage made of the “Community Edition” that contravenes these contractual conditions shall result in the immediate revocation of the usage rights of the culprit.
2.1.2 Proprietary Software
In addition to the Community Edition, Shopware also offers Shop Software in a variety of proprietary editions that are provided in exchange for a fee. The details provided on the internet site of Shopware pursuant to these editions do not constitute a binding contractual offer. The customer is granted the opportunity, with the aid of a contractual form, of requesting an open offer for the signing of a contract pursuant to the proprietary Shop Software from Shopware free of charge and without commitment. The customer subsequently receives a written open offer regarding the requested edition of Shop Software.
If the inquiry is to be qualified as an offer according to § 145 BGB, Shopware may accept the offer within two weeks.
By way of the inquiry issued to Shopware with the aid of the contact form, the customer declares that it shall Shopware exclusively for the purpose of its own independent professional or commercial activity, in its governmental or official function or as a business enterprise as defined in § 14 BGB. The customer shall be obligated to provide all details completely and only in accordance with the truth.
220.127.116.11 Service Description
The respective service descriptions for the proprietary editions offered by Shopware may be viewed on the internet page https://en.shopware.com/versions/.
Regarding the proprietary editions Shopware offers support in accordance with the
stipulations quoted under Section 2.6.4.
Shopware furthermore offers software extensions for both the “Community Edition” and for the proprietary editions which may be viewed on the internet site http://store.shopware.com/en/shopware/. These software extensions are not licensed under AGPLv3 but protected by copyright.
18.104.22.168 Conditions of Usage
The conditions of usage referred to under Section 22.214.171.124 shall apply to Shop Software and the standard template of the proprietary editions of Shop Software.
The software extensions referred to under Section 126.96.36.199 are protected by copyright. Shopware grants the customer the simple, non-exclusive., non-transferable to others and unrestricted by time rights of usage to the extensions and modules in connection with Shop Software, thereby taking the following stipulations into account.
The rights shall be granted for each contract solely for usage on one webserver. If it is planned to the use the software on more than one server it is necessary to buy a Shopware Enterprise Edition, e.g. in case of a shared hosting to distribute the load by usage of a load balancer. The usage of the software extension in the context of a further online shop shall require the renewed and further granting of usage rights by Shopware.
The software extensions referred to under Section 188.8.131.52 may, in the version deployed by the customer, only be used totally or partially for company-related purposes in connection with the customer’s business activities. The deployment in affiliated companies or companies in which the customer holds a stake is not permitted without express usage authorisation. The usage is restricted to one domain. The usage of the software extensions is restricted to the customer’s main domain via which the majority of the customer’s business activities are conducted. The customer shall bear the sole responsibility for adherence to all legal and statutory requirements hereby.
The customer shall be permitted to make copies of the software extensions referred to under 184.108.40.206 inasmuch as the respective copying should be necessary with regard to the usage. The cases of necessary copying include in particular the installation of the software extensions onto the bulk memory of the hardware deployed and the loading of the software into the working memory. Furthermore the customer may make a copy for back-up purposes. On principle, however, only a single back-up copy may be made and stored. The back-up copies may only be used for archiving purposes.
The customer shall be obligated to prevent unauthorised access by third parties to those software extensions referred to under Section 220.127.116.11 or to the documentation by taking appropriate precautions. The original files and the back-up copies are to be kept in a place that is secured against unauthorised access by third parties. The attention of the customer’s employees is to be emphatically drawn to the need for adherence to these contractual conditions and to the stipulations of the Copyright Act.
Other forms of copying, including the printing out of the programme code on a printer, may not be undertaken by the customer.
2.1.3 shopware Enterprise Marketplace (SEM)
2.1.4 shopware Enterprise Satellite (SES)
2.2 Patches and Updates
2.2.1 Patches are amendments to software with the aim of resolving a specific problem. Updates are amendments to software by way of which the functionality of the entire system is extended. Generally speaking, updates also include patches.
2.2.2 Shopware shall make patches and updates available to the customer but shall not undertake the installation of patches or updates nor offer any support or consulting services. Such services may be procured from Shopware by way of separate agreements. Shopware shall then provide patches for the customer once they are ready for use and have been tested on site. The customer shall have no claim to patches and/or updates being provided at a particular moment in time or within a particular period of time.
2.2.3 Shopware shall provide patches, by way of which serious errors in the software are rectified, to the best of its endeavours. The customer explicitly recognises, however, that no specific reaction time and/or no regular intervals for the release of updates or patches can be promised. No claims shall accrue to the customer on the ground of the delayed provision of updates or patches. The customer recognises that patches and updates may only be tested by Shopware for standard installations. In particular, no tests may be performed for side effects that are caused by amendments to software extensions or the manual alteration of configuration files undertaken by way of circumventing those mechanisms provided by the software. The assurance that a particular patch or a particular update shall not affect the software’s way of functioning under any circumstances is explicitly not given.
2.2.4 Shopware shall make patches and/or updates available to the customer by storing them on a server that may be accessed via the internet.
2.3 Shopware Account
2.3.1 The customer, by way of the Shopware Account, shall be given the opportunity
of managing all software extensions in connection with Shop Software and its customer data (managing of orders,
amendments to addresses and methods of payment, checking the balance of its account, invoice downloads etc.) and of
availing itself of support services offered by Shopware in accordance with Section 2.5.
With the creation of a Shopware Account the customer declares its consent to these GTC.
2.3.2 The usage of the Shopware Account necessarily requires the prior registration of the customer. Shopware reserves the right to refuse the registration of a customer should there be objective grounds for doing so. Upon registration the customer gives their assurance that it is a business enterprise, a public law entity or a special fund under public law as defined in § 310 Paragraph 1 BGB.
The customer undertakes to provide the details necessary in the context of registration completely and in accordance with the truth. Registration on behalf of a third party is not permitted. Shopware shall be entitled to deny the customer usage of the Shopware Account or to exclude it from the usage thereof, inasmuch as the details provided should be incomplete or untrue.
2.3.3 The customer shall be given password-protected access to the Shopware Account via the internet. The password should be individually sufficiently long and complex. The customer shall be obligated to keep their access data confidential. It shall be required to protect these against abuse by third parties. In the event of the loss or abuse of the access data the customer shall be obligated to inform Shopware hereof without delay. In the event of abuse and unauthorised usage of the Shopware Account Shopware shall be entitled to block the access. Should the customer be responsible for the abuse or unauthorised usage of the Shopware Account, it shall be liable for consequences that derive from the abuse or unauthorised usage of the Shopware Account.
2.4 Community Store for Software Providers
Shopware offers the customer the opportunity of offering their own self-developed and compiled software extensions for sale, for lease or as a free download via an electronic sales platform (hereinafter referred to as “Community Store”). The customer referred in this context shall be described as the “Software Provider” in the following.
The use of the
Community Store necessarily requires a Shopware Account in accordance with Section 2.3 of these GTC.
In the case of extensions with back-end-components for Shop Software, which are to be sold under a proprietary licence, the prior acquisition of a Shopware-SDK-licence by the Software Provider is obligatory.
All further detailed regulations for the usage of the Community Store by the Software Provider are contained in a separate contract. After this contract has been signed by both parties the Software Provider shall be activated by Shopware for the provision of software extensions.
2.5 Community Store for Users
Shopware offers the customer the opportunity, via an electronic sales platform (hereinafter referred to as “Community Store”) to purchase, lease or use free of charge software extensions that have not been developed and compiled by Shopware itself. The customer referred to in this context shall be described in the following as “User.”
The use of the Community Store necessarily requires a Shopware Account in accordance with Section 2.3 of these
Shopware places the service of its Community Store at the disposal of the User subject to the following regulations.
2.5.1 The contract pursuant to the acquisition of software extensions that are offered in the Community Store shall come about between Shopware and the User.
The exclusive object of the contract is the sale of the current version of the software extensions. Subsequent versions are not an object of the contract. The User selects a software extension without commitment from the range on offer in the Community Store and places it in their shopping cart by clicking the button “Purchase”.
The contents of the shopping cart constitute a binding purchase offer on the part of Shopware that the User accepts by selecting the button “Order Now”. Any input errors may be corrected by the User with the aid of the delete and amendment function until the final acceptance of the offer by means of selecting the button “Order Now”. Subsequently Shopware confirms the concluded purchasing contract electronically by way of a confirmation mail that may also be worded as an “Invoice”.
The data necessary for the execution of the contract shall be stored by Shopware and shall be accessible by the User
at any time.
The right of withdrawal with respect to the software extensions offered in the Community Shop and availability as downloads is excluded.
The languages available for the signing of the contract are exclusively German and English.
Shopware is not subject to any specific codes of conduct not mentioned in the conditions above.
2.5.2 As an alternative to purchasing, the option of leasing is available for some extensions. The minimum term for the leasing of an extension is three months. Thereafter, the leasing term is renewed for one month each. The leasing term for the item leased may be cancelled immediately after the minimum term. Payments for leasing of the current term are not be refunded partially.
Should the customer be guilty of a serious breach of the agreed rights of usage or of any protected rights of the holder of those rights, Shopware may cancel the contract with immediate effect.
In the event of cancellation the customer shall be obligated to uninstall and/or delete all originals of the software affected by the cancellation, together with the documentation and all copies, or to return them to Shopware. At the discretion of Shopware the customer shall submit a declaration pursuant to the deletion.
2.5.3 Extensions and modules shall be installed and put into operation by the User. Support for the respective extension shall be performed exclusively by the Software Provider – inasmuch as it should offer this –, but under no circumstances by Shopware.
Extensions and modules including installation instructions shall be provided by the Software Provider. Operating instructions (user documentation or online help) shall only be supplied inasmuch as this should be necessary for its designated use. , At the discretion of the Software Provider, the operating and the installation instructions may be made available to the User electronically, unless this should be unreasonable for the Software Provider.
2.5.4 Shopware is under no obligation to review the software extensions offered in the Community Store by the Software Provider for their functionality, properties described in the offer or violations of any third party rights. Questions of compatibility are to be clarified prior to the purchase directly between the User and the Software Provider.
2.6 Training and Support Services
2.6.1 The regulations under Section 2.6 shall apply to service contracts as these
are defined in the BGB, inter alia training, consulting and service performances inasmuch as these have been
contractually agreed. Those employees concerned with the implementation of the services shall be chosen by Shopware.
The customer shall have no claim to having the services performed by particular employees.
Shopware determines the nature and manner in which the service is performed. Inasmuch as Shopware should be required to describe the results of the service in writing, only the written version shall be decisive.
2.6.2 Shopware shall make documentation, online manuals and self-compiled tutorials available to the customer in a compendium of knowledge free of charge.
2.6.3 Shopware shall make a forum available to the customer free of charge in which it shall be able to exchange opinions with other customers. A prerequisite for the active usage of this forum is a Shopware Account in accordance with Section 2.3.
2.6.4 The services based upon the respective service contracts, which are offered by Shopware and which therefore are deemed to be contractually owed, are listed on the internet site, https://en.shopware.com/support/support-overview/, and available there for inspection.
The term of a service contract is 12 months. Service contracts are automatically renewed for an additional 12 months if not cancelled prior to the end of the term.
Shopware shall generate guarantees and service contracts always and only for the most current software generations and for Shopware versions which are outdated by a maximum of two newer versions (including minor and major updates). The customer is obligated to keep their software up to date and in particular to install any new updates as they are made available as well as to purchase new generations of Shopware so long as it is not beyond the conditions set in the service contract.
Should the service not be performed in a manner conforming to the contract or that is faulty and should Shopware bear the responsibility for this, Shopware shall be obligated to perform the service in a manner conforming to the contract within a reasonable period of time without any extra costs for the customer. A precondition for this is a complaint on the part of the customer that is to be lodged immediately, within 2 weeks of learning of the defect at the latest. Should it not prove possible to perform essential parts of the services in a manner conforming to the contract for reasons for which Shopware shall bear the responsibility for a reasonable period of grace, to be set explicitly by the customer. The customer shall be entitled to cancel the contract with immediate effect within such time.
In such a case Shopware shall have a claim to remuneration for those services performed on the basis of the contract up to the point in time at which the cancellation becomes effective. Remuneration shall only be waived for those services for which the customer, within a period of 4 weeks subsequent to the notification of cancellation, provides proof that they have neither use nor interest in.
The right to cancel the contract with immediate effect on important grounds remains unaffected by the conditions listed above. Shopware shall have a claim to remuneration for those services performed on the basis of the contract up to the point in time at which the cancellation becomes effective. Remuneration shall only be waived for those services for which the customer, within a period of 4 weeks subsequent to the notification of cancellation, provides proof that they have neither use nor interest in.
Further reaching claims on the part of the customer due to disruptions to performance are excluded. This exclusion shall not apply in cases of wilful intent or gross negligence nor in cases of violation of life, body or health.
2.6.5 Shopware offers the customer training sessions in handling Shop Software in
accordance with the following regulations.
Registrations may be effected per telephone, in writing or online. The registration shall be binding at the latest when confirmed either in writing or by e-mail. The places available shall be allocated according to the order in which the registrations are received.
The training contents and valid tuition fees described by Shopware on its internet site at the time of registration for the respective training course shall apply. The merely temporary attendance at a training session shall not justify a reduction of the tuition fees.
Should the customer cancel their registration at least 10 days before the starting date quoted for the respective training session, Shopware shall refund the tuition fees in full. Otherwise Shopware shall refund 50% of the tuition fees.
Shopware reserves the right to cancel the training session or to reschedule it in terms of both time and place inasmuch as the number of participants would not allow said training session to be implemented in an economically effective manner or should, for example, one or more lecturers be unable to attend due to illness. Should the training session be cancelled without replacement, Shopware shall refund the tuition fees to the customer in full, providing that such fees have already been paid.
Shopware reserves for itself all rights to the training documents. The copying and/or public disclosure of the training documents shall not be permissible without the prior written consent of Shopware.
The precondition for the successful participation in the respective training session and –inasmuch as the training booked should include this – the issuing of a certificate are the conditions cited in the respective description of the training session.
3. Remuneration and Terms of Payment
The prices shall be valid for one month from the calendar date of the offer. The prices are, as a general rule, net prices subject to the statutory rate of VAT. Shopware is entitled to settle accounts monthly.
All invoices are to be paid as a general rule within 7 calendar days upon receipt. Discounts for early payment shall not be granted.
Inasmuch as nothing to the contrary has been agreed, remuneration shall be settled according to expenditure at the Shopware prices generally valid at the time of the signing of the contract. Settlement according to expenditure shall be effected by way of presenting those proofs of activity that are standard at Shopware. The customer shall be entitled to contradict the statements therein within two weeks in writing. Should these two weeks expire without any objections on the part of the customer the proofs of activity shall be deemed to have been accepted.
Travel times and costs plus subsistence costs shall be calculated based upon the regular place of work of the Shopware employee. Travel times and costs are accrued during the journeys from the employee’s regular place of work and the respective place of deployment of the customer or between different places of deployment of the customer.
Inasmuch as nothing to the contrary has been agreed, travel times and costs including auxiliary costs and any other expenditure shall be refunded to a reasonable extent, at the very latest according to the fiscal flat rates. Travel time shall be considered working time.
Any remuneration according to expenditure agreed in the contract shall be the fee for the time required for the performance of the contractual services inasmuch as nothing to the contrary has been agreed. Material expenditure shall be settled separately. Any waiting periods for which the customer bears the responsibility shall be charged as working hours.
Shopware shall issue monthly invoices retroactively, inasmuch as nothing to the contrary has been agreed. Remuneration according to expenditure shall be due for payment after the receipt of a verifiable invoice and proof of performance, inasmuch as no particular form for the proof of performance has been agreed. The proof of performance shall be deemed accepted if and inasmuch as the customer does not assert any detailed objections within 14 calendar days of the receipt thereof.
The customer shall only be entitled to offset rights should its counterclaims be legally determined, undisputed or recognised by Shopware. Furthermore the customer shall only be entitled to exercise a right of retention inasmuch as their counterclaim is based upon the same contractual relationship.
Should a factor affecting the calculation of the remuneration deviate during the course of the implementation of the contract in a manner that is not merely insignificant, a corresponding adjustment of the remuneration shall follow.
4. Deadlines for Performance, Term
Fixed performance deadlines should be exclusively explicitly agreed upon in a documented form. Inasmuch as this is reasonable for the customer, Shopware shall be entitled to supply partial services.
Should a circumstance for which Shopware does not bear the responsibility, including strike or lockout, have a negative impact on the ability to meet the deadline (hereinafter referred to as “Disturbance”), the deadlines shall be pushed back for the duration of the Disturbance, if necessary including a reasonable restart period. One contractual partner shall be obligated to inform the other contractual partner concerning the cause of a Disturbance within their sphere of influence and the duration of the postponement without delay.
Should expenditure increase due to a Disturbance, Shopware may also demand remuneration for the extra expenditure, unless it should be the case that the customer has not caused for the Disturbance and the cause thereof is outside their sphere of responsibility.
Should the customer be entitled to rescind the contract due to improper performance on the part of Shopware and/or demand compensation in lieu of performance, or should it maintain suchlike, the customer shall, at the request of Shopware, declare within a reasonable period of time whether they intend to assert said rights or continue to require fulfilment. In the event of rescission the customer shall be required to refund Shopware the value of previously existing usage possibilities; the same shall apply to deteriorations resulting from correct usage.
If a contract has been concluded for an indefinite term it may be cancelled in writing serving a period of notice of 3 months prior to the end of a calendar year. Such a cancellation shall be possible for the first time effective upon the expiry of that calendar year that follows that in which the contract is concluded. Any minimum term agreed shall not be affected by this right of cancellation. This shall not apply in a given case inasmuch as an agreement to the contrary has been made.
Withdrawal from the contract is excluded. The contract may, however, be cancelled by either Shopware or the customer without adherence to a period of notice on important grounds.
Notices of cancellation shall only be effective in written form.
5. Cooperation Duties on the Part of the Customer
The customer is obligated to support Shopware and to create within their sphere of operations all those prerequisites necessary for the proper execution of an order. To this end it shall, in particular, provide all necessary information such as access data to servers, providers, internet shops or administration areas. The customer shall furthermore ensure that expert personnel are available to support Shopware. Orderly and regular data protection measures, in particular before the installation of the software, updates and software extensions, shall be the responsibility of the customer. The customer shall be required to notify disturbances in writing in verifiable and detailed form thereby supplying all details expedient for the identification of the disturbance and the analysis thereof. In particular, details are to be provided as to those work steps that led to the disturbance and the manifestation and effects of the disturbance.
When describing, isolating, determining and reporting errors the customer must follow the instructions issued by Shopware.
During the implementation of the support services the customer shall either be personally present or assign for this purpose competent employees who are authorised to assess and decide upon errors, functional extensions, functional restrictions and amendments to the Shop Software structure. If necessary, other work on the system environment is to be suspended whilst this work is being done.
The customer shall nominate a responsible contact person. This person may take binding decisions on behalf of the client or bring about such decisions without delay and is entitled to submit legal declarations in connection with the contractual and licensing conditions. The contact person shall be at Shopware’s disposal for any necessary information.
Inasmuch as nothing to
the contrary has been agreed the customer shall furthermore store on their premises all documents, information and
data handed over by Shopware in such a manner that these, in cases of damage to and loss of data carriers, may be
The customer shall protect the software against unauthorised access by third parties.
The customer undertakes to ensure by way of appropriate technical and organisational measures that the software may be used for their intended purpose.
Shopware may demand additional remuneration for
its expenditure inasmuch as
a) Shopware should become active as a result of a report being made despite the absence of any defect, unless it should be the case that the customer could not be expected, in return for a reasonable amount of effort, to recognise that there was no defect, or
b) A reported defect cannot be reproduced or otherwise proven by the customer to be a defect, or
c) Additional expenditure is incurred as a result of improper fulfilment of its duties on the part of the customer.
The customer shall ensure that the contact person it nominates provides Shopware with the documents, information and data necessary for the performance of the service in full, correctly, punctually and free of charge inasmuch as these are not owed by Shopware. Furthermore, the customer shall be responsible for the updating thereof. Shopware shall be entitled to assume the completeness and correctness of these documents, information and data, unless it should be obvious to Shopware that these are incomplete and incorrect.
The customer shall protect the software and all associated login data and take all necessary precautions, following the latest technological standards, to safeguard their integrity. In particular, the customer practices, with a reasonable standard of safety, to bar unauthorized access to the Admin account.
The customer is not permitted to remove or alter the copyright notices or any other badges of shopware.
The customer is obligated to refrain from any measure which jeopardizes or disturbs the functional operation of the software and agrees to not access unauthorized data. The customer ensures that they are not transmitting information and data to the software that is infected with viruses, worms or Trojans. The customer agrees to compensate Shopware for all damages which may arise from failing to comply with these obligations. The customer also agrees to compensate Shopware for any damages resulting from breaching these obligations, as well as release Shopware from any obligations from third-party claims, including attorney and court fees, which were asserted against Shopware due to noncompliance on the behalf of the user.
6. Cession of Rights
The customer may only cede rights from this contract to third parties with the prior consent of Shopware.
Shopware shall be entitled to cede all duties imposed and all rights accrued from the contracts to third parties. Shopware shall ensure that the customer shall not suffer any disadvantages as a result thereof.
Shopware shall furthermore be entitled to deploy third parties for the fulfilment of all of obligations on its behalf. In this case Shopware shall continue to guarantee in its capacity as contractual partner the orderly fulfilment of its contractual obligations towards the customer and the customer shall accept the service performed as a service of Shopware.
7. Reservation of Proprietary Rights
Shopware reserves the proprietary rights to the contractual services until such time as the remuneration owed has been paid in full and all claims resulting from the business relationship with the customer have been satisfied; in the case of payment by cheque or bill of exchange until these have been honoured.
In the event of culpable default on payment on the part of the customer or a major violation of duties of care or safe custody the assertion of reservation of proprietary rights on the part of Shopware shall not be deemed a withdrawal from the contract unless Shopware should explicitly declare this to the customer.
Upon the assertion of the reservation of proprietary rights by Shopware the customer’s right to continue to use the software shall lapse. All software copies made by the customer must be either handed over or deleted.
8. Economic Incapacity
In the event of the customer being economically unable to fulfil their obligations towards Shopware, Shopware may terminate with immediate effect existing exchange agreements with the customer by way of withdrawal and long-term commitments by way of cancellation, even if the customer should file an insolvency application. § 321 BGB and § 112 InsO (Insolvency Act) shall not be affected by this. The customer shall provide Shopware with notice within a reasonable time of any threatening inability to pay in writing.
Shopware provides a warranty in the event of severe defects of the software. To this end, shopware, at its own discretion, provides the customer with a new software version free of charge or arranges a repair of the defects; a valid rectification of defects includes shopware providing the customer with reasonable options to avoid the effects of the defect. Shopware is entitled to perform a supplementary evaluation given the customer has paid a reasonable portion of the compensation.
Should two subsequent performance evaluations fails, the customer is protected under statutory rights.
The statute of limitations for the right to claim damages is one year, commencing with the delivery of the software. In the event of intent or gross negligence by shopware, including fraudulent concealment of the defect, bodily injuries or legal defects in terms of § 435 of the German Civil Code as well as in the event of warranties, the statutory limitation periods apply; as well as claims under the Product Liability Act.
The customer’s right to claim damages is forfeited as soon as the customer has made changes or enhancements to the software or source code.
Provisions of the sale stipulated by the German Civil Code receive secondary ranking.
The entitlement of the customer to compensation or reimbursement of expenditure incurred in vain shall, regardless of the legal nature of the claim, be oriented towards Section 9 of these GTC.
Shopware shall be liable without restriction for damage resulting from the violation of life, body or health that is to be attributed to a negligent violation of duty on the part of Shopware or a wilful or negligent violation of duty on the part of a legal representative or vicarious agent of Shopware.
Regarding other liability claims Shopware shall only be liable without restriction for the non-existence of a guaranteed property as well as for wilful intent and gross negligence also on the part of its legal representatives and leading executives. For the culpability of any other vicarious agents Shopware shall only be liable within the scope of slight negligence as follows: in the event of slight negligence Shopware shall only be liable inasmuch as an obligation has been violated the adherence to which is of particular significance for the attainment of the contractual purpose (cardinal obligation). For violations of the cardinal obligation, liability for all cases of damage is restricted in total to EUR 10,000.00. This also applies to lost profits and non-achieved savings. Further reaching liability for negligence as well as for any other remote consequential damage is excluded.
Liability for data loss is restricted to the typical recovery costs that would have been incurred in the event of the regular making of safety copies in accordance with the degree of risk involved.
The above regulations shall also apply in favour of employees of Shopware.
Liability according to the Product Liability Act shall remain unaffected by this (§ 14 ProdHaftG).
11. Protected Third Party Rights
The customer shall not remove from the software any identifying marks, comments pursuant to protected rights or pointers to proprietary rights of Shopware contained therein but shall, where appropriate, also include these in any copies made.
Shopware shall indemnify the customer from all claims of third parties resulting from the violation of protected rights to software developed by Shopware and handed over in its contractually agreed version. The precondition for the accrual of this liability is that the customer should not, either in writing or orally, issue any statements to the third party with regard to the violation of protected rights and should in particular neither recognise any rights or facts nor accept any liability. Furthermore the customer must not have combined the software with software from any other source without the prior written consent of Shopware and under no circumstances have used the software contrary to its intended purpose.
Shopware shall be entitled to undertake on the customer’s premises at their own costs necessary software amendments on the basis of protected rights claims asserted by third parties. The customer may not derive any contractual rights from this. The customer shall inform Shopware immediately and in writing should their attention be drawn to any violation of commercial protected rights and copyright caused by a product supplied by Shopware.
12. IT Security
The customer shall be responsible for measures pursuant to IT-security.
13. Export Control Regulations
The customer shall observe upon their own responsibility those import and export regulations applicable to the deliveries or services, in particular those of the USA.
In the case of cross-border deliveries or services the customer shall bear any customs dues, fees or other charges incurred. The customer shall handle statutory or governmental procedures in connection with cross-border deliveries or services on their own responsibility inasmuch as nothing to the contrary shall have been explicitly agreed.
14. Data Protection
The collection, processing and storage of data shall be exclusively in accordance with the prescriptions of the German data protection legislation. The data protection declaration is an integral part of these GTC and may be retrieved from our internet site at any time.
15. Choice of Law
With regard to all legal relationships deriving from this contractual relationship the contractual partners agree the application of the laws of the Federal Republic of Germany under exclusion of the UN-Convention on the International Sale of Goods.
16. Court of Jurisdiction
Inasmuch as the customer is a merchant in accordance with the German Commercial Code, a legal entity under public law or a special fund under public law the business domicile of Shopware shall be agreed to be the exclusive court of jurisdiction for all legal disputes which may arise on the basis of this contractual relationship and in the context of the processing of said relationship.
17. Written Form, Storage of Customer Data, Partial Invalidity
All orders and contracts shall require written (order) confirmation of Shopware. The requirement for this form may only be waived on the basis of a written agreement.
No verbal side agreements have been concluded between the contractual parties. Subsequent supplements or amendments to these agreements shall be made in written form. Verbal waiving of written form is forbidden.
Order processing shall take place within Shopware via automated data processing. The customer agrees that their data shall be stored electronically and processed by Shopware.
In the event of the legal invalidity of individual stipulations contained herein, the remaining parts of this contract shall nonetheless remain binding. This shall not apply should continued adherence to the contract constitute undue hardship for one or both of the parties.