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. Supplementary or deviating terms and conditions of the customer do not apply unless shopware has expressly agreed to their validity in writing. These GTC shall also apply if shopware executes the delivery to the customer without reservation and/or performs the service to the customer without reservation in the knowledge that the customer's terms and conditions contradict or deviate from these GTC.
The German version of these General Terms and Conditions and the contract concluded with the customer, if applicable, shall always be binding on the customer. Translations into other languages are only intended to make it easier for the customer to understand ("reading version"). This also applies to any landing pages provided by shopware in languages other than German on its website.
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), hereinafter referred to as "Customer". 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 provides the Shop Software with the system requirements and functionalities as described on the website, in a service description and in these GTC when the contract with the customer is concluded. Apart from that, the Customer has no claim to a certain design or equipment of the Shop Software. Properties of the Shop Software are only guaranteed if shopware has expressly designated them in text form as guaranteed characteristics for the Customer.
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 confirmation by shopware in text form.
shopware shall be entitled to offer Shop Software as both free and proprietary software. Additionally shopware offers software extensions for the shop software. The conditions regulated in these General Terms and Conditions shall apply in each case.
If software is provided to the customer for demonstration and testing purposes, the software remains the property of shopware and the rights of use are only agreed as a simple rights of use for the duration of the agreed test or demonstration period, a maximum of 4 weeks from the date of provic. 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)
In the course of downloading the Shop Software in the "Community Edition", the Customer is informed of these General Terms and Conditions by a link. By downloading, he automatically confirms that he agrees to the validity of these General Terms and Conditions.
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. The frontend 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
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”.
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 General Terms and Conditions. The licensing conditions of the “Community Edition” shall not be restricted or amended by these General Terms and Conditions. Additional rights to separately acquired software extensions (Section 2.1.2), which are derived from their license conditions, are expressly not restricted by this. No further rights are granted.
In return, the Customer grants shopware the right to name him as a reference customer and to use the Customer's word and picture trademarks for advertising purposes when using a "Community Edition".
In addition to Clauses 15 to 17 AGPLv3 and the MIT license, the following applies to customers in Germany: shopware's liability for the use of the "Community Edition" is limited to intent and gross negligence. Claims arising from defects are excluded when the “Community Edition” is provided, unless the defect has been concealed fraudulently.
Any use of the "Community Edition" contrary to these contractual conditions immediately terminates the right to use the Shop Software.
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. Alternatively, the Shop Software can also be purchased in the Community Store (Section 2.5).
If the inquiry is to be qualified as an offer according to § 145 BGB, shopware may accept the offer within two weeks.
shopware only offers software extensions for the shop software as proprietary software. These are part of an edition or are offered separately via the Community Store (Section 2.5).
With the purchase of the proprietary software, a software service contract is automatically concluded for 12 or 24 months at the customer's option. The costs of the service contract are covered by the purchase price for the minimum term. The service contract is automatically extended in accordance with the provisions in 2.6.4.
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 via the Community Store (Section 2.5). An overview is visible on 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, whether as part of an edition of the Shop Software or as an independently purchased extension. shopware grants the Customer the simple, non-exclusive right to use the extensions and modules in connection with the Shop Software, limited to Europe and not transferable to third parties for an unlimited period of time, subject to the following provisions.
The rights shall be granted for each contract solely for usage on one webserver for one online shop. If it is planned to the use the software on more than one server it is necessary to buy a Shopware Enterprise Edition (Section 2.1.5), e.g. in case of a shared hosting to distribute the load by usage of a load balancer. The use for another online shop always requires a further contract and the renewed granting of rights of use 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. Any use in affiliated companies and companies in which the Customer is involved is not permitted in text form without the separate consent of shopware. 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 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. However, only one single backup copy may be made and kept, which must be marked as such.
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.
Further reproductions, including the output of the program code to a printer, may not be made by the Customer.
The Customer's statutory rights under Sections 69d, 69e UrhG remain unaffected.
18.104.22.168 Open Source Software
Proprietary software may contain open source software of third parties (hereinafter referred to as "OSS"). Notwithstanding Subclause 22.214.171.124, the Customer shall only receive the rights of use to this OSS which result from the license conditions applicable to the OSS. At the Customer's request shopware will inform the Customer which OSS is included in the Shop Software or software extensions under which license conditions, if this is not already taken over from its document provided with the software to the Customer.
2.1.3 shopware Enterprise Marketplace (SEM)
2.1.4 shopware Enterprise Satellite (SES)
2.1.5 Shopware Enterprise Edition
2.2 Patches and Updates
Patches are amendments to software with the aim of resolving a specific problem. Updates are changes to software that extend its functionality. Updates usually include patches.
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 has no right to demand that patches and/or updates are made available on specific dates or within specific periods of time.
shopware will make every effort to provide patches to correct serious software bugs. However, specific response or recovery times are not guaranteed.
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.
The Customer's claims arising from statutory liability for defects or guarantees remain unaffected.
shopware shall make patches and/or updates available to the customer by storing them on a server that may be accessed via the internet. The Customer will inform himself about existing patches and/or updates.
With the installation of patches and/or updates, the Customer receives the same rights of use as for the Shop Software or software extension for which the patch or update has been installed.
2.3 Shopware Account
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.
The use of the Shopware Account requires the registration of the Customer. shopware can refuse the registration of a Customer without giving reasons. Upon registration, the Customer assures that he is an entrepreneur, a person under public law or a person of a special fund under public law within the meaning of § 310 (1) BGB (German Civil Code).
The Customer undertakes to provide the information required for registration completely and truthfully. Registration in the name of third parties is not permitted. shopware is entitled to refuse the Customer the use of the Shopware Account or to exclude the Customer from the use if the information is incomplete or untruthful, this is the responsibility of the Customer and the Customer does not update the information immediately upon request by shopware.
The Customer receives password-protected access to the Shopware Account via the internet. The password is assigned by the Customer and must be individual, sufficiently long (at least eight characters) and complex (capital letters, lower case letters, digits, special characters). The Customer is obliged to keep his access data secret. He must protect them from misuse by third parties. In case of actual or suspected loss or misuse of the access data, the Customer must immediately inform shopware. shopware is then entitled to block access until the risk of misuse has been eliminated. If the Customer is responsible for the misuse of the Shopware Account, he is liable for all consequences resulting from the misuse.
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 case of extensions with backend components for the Shop Software, which are to be distributed under proprietary license, the separate prior purchase of a paid Shopware SDK license by the software provider is obligatory.
All further regulations for the use of the Community Store by the software provider are regulated in a separate, written contract. After this contract has been concluded, shopware will activate the software provider for the provision of software extensions.
2.5 Community Store for Users
shopware offers the Customer the possibility to purchase, rent or use free of charge software extensions which were not developed and created by shopware itself via an electronic sales platform (hereinafter referred to as "Community Store"). The Customer named in this context is hereinafter referred to as the "User".
The use of the Community Store requires a Shopware Account according to section 2.3.
shopware provides the Community Store for the user under the following regulations.
The contract for the purchase of software extensions offered in the Community Store is concluded between shopware and the User.
Alternatively to the purchase for some software extensions also rent is possible. The minimum rental period is three months, unless a longer minimum period is stated in the Community Store. Thereafter, the rent is extended by one month in each case. Termination is possible at any time without notice after the minimum term. Rent already paid for the current month will not be refunded.
In the event of termination, the Customer is obliged to completely uninstall the software extension and to delete it, including the documentation and all copies, or to return it to shopware. On request of shopware the Customer confirms the complete deinstallation and deletion in text form.
If the software extension is not uninstalled after the end of the term of the contract, but continues to be used by the customer for at least two weeks, the rental is extended for an indefinite period, but at least by the respective minimum term for the software extension. This does not affect Shopware's right to request the customer to uninstall the software extension or to terminate the contract itself.
Software extensions are installed and put into operation by the User. Support is provided exclusively, if offered, by the software provider, in no case by shopware.
Software enhancements are provided in the Community Store or in text form, including installation instructions. Operating instructions (user documentation in text form or online help) are only owed if the intended use is not possible without them. No other instructions or documentation are owed.
shopware is not obliged to check the software extensions offered in the Community Store by the software provider for their functionality, properties described in the offer or infringements of third party rights. Questions of compatibility must be clarified directly with the software provider prior to the purchase by the User.
If shopware itself is the software provider, support for the software extension shall only be provided under a maintenance contract to be concluded separately in accordance with Section 2.6.4. Users of the Community Edition can therefore also not receive support for paid extensions.
The User's claims arising from statutory liability for defects or guarantees remain unaffected.
In the shop software and, if applicable, in the software extensions, shopware offers functions that can be used to check the customer's permission to use the shop software and any software extensions he or she has purchased.
To this end, information about the customer's use of the shop software and software extensions and about the domain(s) he or she uses for this is transferred to shopware and compared with data about the customer that is already available to shopware. Should shopware find out that the customer has used the shop software or a software extension registered with shopware in any other way, shopware is entitled to (a) deactivate the use of the shop software or software extension by remote access until further clarification and, if necessary, proper licensing are obtained, and (b) pass on the data to the manufacturer of the software extension concerned.
If software extensions for demonstration and test purposes are provided to the customer, the contract for the purchase or rental of the software extension as described in Clause 2.5.1 or Clause 2.5.2 shall come into effect. In this case, the first month shall be deemed a demonstration and test phase during which the Customer may withdraw from the contract (purchase) or terminate it (rental) at any time without observing a period of notice or a minimum term. In this case, the Customer shall not incur any costs for the use during the demonstration and test phase.
2.6 Training and Support Services
The regulations under Section 2.6 shall apply to any service contracts agreed separately with the Customer for training and certification, consulting and services (hereinafter "service contracts"). 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 shall determine the nature and manner in which the service is performed If results of the service provision are to be issued to the Customer, only the results issued shall be binding.
Shopware shall make online training courses, documentation, online manuals and self-compiled tutorials available to the Customer in a compendium of knowledge free of charge. There is no entitlement to provision. Shopware can reduce the scope of the compendium of knowledge or completely discontinue it at any time.
shopware shall make a forum available to the Customer free of charge in which he or she 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. There is no entitlement to provision. shopware can reduce the scope of the forum or discontinue it fully at any time.
The Customer is responsible for the content it posts on the forum. For shopware, the content posted by the Customer on the forum is third-party content which shopware does not make its own. As a technical service provider which only provides the forum for its customers, shopware is not responsible for this third-party content.
If shopware becomes aware of clear legal infringements in the forum, shopware shall delete these posts or otherwise restrict access. The Customer shall indemnify shopware against all third-party claims asserted against shopware on account of the content posted by the Customer in the forum. This also includes covering all reasonable and usual legal expenses incurred by shopware when defending itself against claims from third parties.
The services upon which the service contracts offered by shopware are based can be viewed here: https://en.shopware.com/support/overview/.
The term of the service contracts is 12 or 24 months and is automatically extended by a further 12 or 24 months, depending on the term concluded at the beginning. The service contract can be cancelled up to one day before the end of the contract period via the shopware account or by sending an e-mail to firstname.lastname@example.org.
shopware shall provide services for the maintenance contract only for the current software generation and for Shopware versions that are at most two versions behind (including both minor and major updates). The Customer must therefore keep the Shop Software and any software extensions up to date, and in particular install any provided updates and upgrades and/or purchase new software generations to the extent that their acquisition is not governed by the maintenance contract. Failing this, the Customer cannot utilise the services of the maintenance contract until the software is updated.
Should the service not be performed in a manner conforming to the contract 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 and no later than within 2 weeks of learning of the defect. Other rights of the Customer shall remain unaffected.
If a service contract is terminated, shopware shall be eligible for payment for the services performed up until the time when the termination becomes effective.
The right to extraordinary termination for good cause shall remain unaffected.
shopware shall offer the Customer on-site and online training sessions on handling the Shop Software or software extensions. The following regulations apply to on-site training sessions.
Registrations for on-site training sessions can be made by phone, in writing or online. The registration shall be binding at the latest when confirmed by shopware. The places available shall be allocated according to the order in which the registrations are received.
The training content and applicable training fees described on the shopware website at the time of registration for the on-site training session concerned shall apply. The merely temporary attendance at a training session shall not justify a reduction of the on-site training fees.
Should the Customer cancel its registration up to ten days before the on-site training begins, shopware shall refund the training fees in full. Otherwise, shopware shall refund 50% of the training fees. It is possible for the Customer to name a stand-in participant.
shopware reserves the right to cancel training without giving reasons up to ten days before the start of on-site training. After this period, cancellations are only possible for good cause, particularly in the event of trainer illness. In the event of cancellation, any training fees that have already been paid shall be refunded in full. Other claims by the Customer shall not exist. shopware may postpone or delay on-site training sessions up to one month before they begin. shopware shall inform the Customer of this without delay. The Customer's registration shall remain valid, unless the Customer informs shopware within two weeks that it no longer wants to attend the on-site training sessions due to the postponement or delay. In this case, shopware shall refund the training price. Other claims by the Customer shall not exist.
shopware reserves for itself all rights to the training documents. In particular, the reproduction, distribution or provision of public access to the training documents are not permitted without written consent from shopware.
The precondition for the successful participation in the respective training session and – inasmuch as the training booked include this – the issuing of a certificate, are the conditions cited in the respective description of the training session.
In addition, shopware offers its Customers the opportunity to obtain online certification. The registration for this takes place online and is binding upon receiving confirmation from shopware.
The necessary knowledge and skills listed on the online training page are a prerequisite for certification as well as the prices listed there.
Online certification can be cancelled up to 30 days after registration, provided the Customer has not yet started the certification process. In this case shopware will refund the full price of the certification.
shopware reserves all rights to the training documents of the online training courses as well as to the documents and test questions of the online certifications. Reproduction, distribution or the provision of public access are not permitted without written consent from shopware.
2.7 Shopware Connect
shopware offers its Customers the possibility within the framework of a service contract to use the trading system Shopware Connect (hereinafter: Connect) for an indefinite period according to the specifications of these GTC.
Connect is a platform for buyers and suppliers of goods and services. Connect has an integrated, automated messaging system to simplify communication between buyers and suppliers, as well as extensive functionality to manage and monitor all ongoing business transactions.
The services of shopware exist in connection with Connect in:
Provision of the possibilities of use of Connect after approval of the customer in accordance with 2.7.2
- Creation of information and communication opportunities with other customers; and
- Consulting and support services for the customer by special agreement with shopware.
Prerequisite for the use of Connect is the approval by shopware. Connect is only available to merchants within the meaning of the German Commercial Code (HGB) and legal entities under public law as a provider of goods and services. There is no entitlement to admission or use of Connect. The customer admitted by shopware will be named in the following user or - depending on the role - buyer or supplier.
shopware is entitled to withdraw a user's admission or to block access to Connect if there is a duly justified suspicion that he has culpably violated these GTC. The user can avert these measures if he eliminates the suspicion by presenting suitable evidence at his own expense. There are no claims for damages against shopware due to such measures.
Users have the possibility to purchase goods and services from other users and/or offer them to other users via Connect. The respective supplier or purchaser becomes the contractual partner. shopware does not act as contractual partner. Details of the delivery and the contractual regulations are agreed directly between the purchaser and supplier as an additional user.
Furthermore, users who want to offer goods and services have the possibility to contractually agree with other offering users via Connect to offer goods and services to end customers under the name of one user or together. Further details of the contractual relationship shall be agreed between the users.
Only the system time valid on Connect applies to all transactions on Connect.
shopware reserves the right to change or extend the content and structure of the platform as well as the associated user interfaces if essential contractual obligations of shopware from the contract concluded with the user are not or not significantly impaired. Shopware will inform the users of Connect about such changes in time in text form or via a notification directly in Connect.
For the provision of Connect shopware receives a remuneration in the amount of 3% of the order value (value of goods and delivery costs) at which the exchange of goods between buyer and supplier is processed, plus statutory sales tax.
The remuneration shall also become due in full if the order is rescinded. This does not apply if the rescission is based entirely or predominantly on reasons for which shopware is responsible.
Offers posted by users on the marketplace must be transparent and must not violate legal regulations in Germany. The user is solely responsible for the content and data posted. The user declares that he is the sole owner of all rights to the content and data posted on Connect or is otherwise entitled to post the content and data on Connect. He guarantees that no rights of third parties are violated by the use on Connect, in particular no picture, text and brand rights of offered articles. shopware does not take over any examination of contents and data for completeness, correctness, legality, topicality, quality and suitability for a certain purpose. Because of these contents and data shopware is only a technical service provider of the user, who does not adopt the data and contents as his own.
shopware reserves the right to block contents and data of users if they contradict the transparency requirement according to sentence 1 or obviously violate legal regulations in Germany.
By granting permission, the user gives shopware and all other users a guarantee that the user will comply with data protection requirements with regard to the data transferred by him. The user exempts shopware from any claims, including those of a public law nature. In particular, the user himself must ensure that any necessary consent of employees is obtained before personal data of employees is processed in Connect in the context of setting up employee logins or in any other way.
If products are shipped by users by drop-shipping, the selling user must clearly indicate to his end customer in the data protection declaration that the data will be passed on to third parties.
The user exempts shopware from all claims asserted by third parties against shopware due to the infringement of their rights or due to legal infringements due to offers and/or content posted by the user. The user shall also bear the reasonable and customary costs of legal defence of Shopware including court and attorneys' fees.
The processing of contracts concluded on Connect is the sole responsibility of the respective user. shopware assumes neither a guarantee for the proper fulfilment of these contracts nor liability for material defects or defects in title of the goods and services traded.
Furthermore, shopware cannot guarantee the true identity and the right of disposal of the users. In case of doubt, both contracting parties are obliged to inform themselves about the identity and the power of disposal of the other contracting party prior to the conclusion of the contract.
By using Connect, shopware is granted a free, unlimited and transferable right to use the content and data provided, in particular
- to store the contents and data on shopware's servers and to publish them, in particular to make them publicly accessible (e.g. by displaying the contents on Connect), and
- for processing and duplication, insofar as this is necessary for the provision or publication of the respective contents and data
The user agrees that shopware may process information and data about the course of business processes as well as the behaviour of users during the execution of these transactions in anonymized form and in particular use them for marketing purposes, e.g. for the creation of statistics and presentations.
The servers of shopware are secured according to the state of the art; however, the user is aware that there is a risk for all users that transmitted data can be intercepted in the transmission path. This applies not only to the exchange of information via e-mail that leaves the system, but also to the integrated messaging system and to all other data transmissions. Therefore, the confidentiality of the data transmitted in the context of using Connect cannot be guaranteed.
3. Remuneration and Terms of Payment
Prices are valid for one month from the calendar date of the offer. Remuneration is generally net prices plus statutory value added tax. shopware can invoice monthly, for services to be rendered permanently in advance at the beginning of each calendar month.
All invoices are due immediately upon receipt and must be paid within one week at the latest without deduction. Discount is not granted. In the event of default by the Customer, the statutory default interest shall be due. Payments by the Customer have only been made when shopware can dispose of the payment amount without reservation.
Payment on a time and material basis shall be charged at the prices of the shopware generally valid at the time the contract is concluded after the services have been rendered. Invoicing on a time and material basis is based on the submission of suitable activity reports. The customer may object to the provisions made there in text form within two weeks. After the expiry of these two weeks without objection by the Customer, the activity records shall be deemed accepted.
Travel times, travel costs and accommodation expenses are calculated depending on the location of the shopware. Travel times and costs arise between the location of the shopware and the respective place of use of the Customer or between different places of use of the Customer.
Unless otherwise agreed, travel times, travel expenses, ancillary costs and other expenses shall be reimbursed in the actual amount incurred, at least in accordance with the flat-rate tax rates. Travel time is considered working time.
A remuneration agreed in the contract on a time and material basis is the remuneration for the time required for the contractual services. The cost of materials shall be remunerated separately. Waiting times and standby times for which the Customer is responsible (e.g. on site at the Customer's premises as expressly requested by the Customer) shall be remunerated in the same way as working hours.
The Customer shall only be entitled to set-off if the counterclaims are legally established, accepted by shopware or undisputed; this shall not apply if the Customer's claims for defects under the same contract are concerned. The Customer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. If a remuneration determining factor deviates not only insignificantly from the Contract during the execution of the Contract, the Remuneration shall be adjusted accordingly.
4. Deadlines for Performance, Term
Dates agreed with the Customer shall only be binding if shopware has expressly confirmed them as binding in writing. Fixed dates are only those dates which have been expressly confirmed to the Customer in text form as fixed dates.
As far as reasonable for the Customer, shopware is entitled to partial performance.
If a cause for which shopware is not responsible, including strikes, lock-outs and forces of nature such as earthquakes, floods, fires, storms or delays (hereinafter referred to as "disruption"), the dates shall be postponed by the duration of the disruption, if necessary including an appropriate restart phase. shopware shall inform the Customer immediately of any disruption and its probable duration.
If the expenditure increases due to a fault, shopware can also demand compensation for the additional expenditure, unless the Customer is also not responsible for the fault.
If the Customer can withdraw from the contract due to improper performance by shopware and/or claim damages instead of performance or assert such claims, the Customer shall, at the request of shopware, declare in writing within a reasonable set period of time whether he asserts these rights or wishes to continue to provide the service. In the event of withdrawal, the Customer shall reimburse shopware the value of previously existing usage options; the same shall apply to deterioration due to intended use.
If a contract is concluded for an indefinite period, it can be terminated at the end of a calendar year with three months' notice. This termination is possible for the first time at the end of the first full calendar year following the year of conclusion of the contract. Termination is excluded during an agreed minimum term.
The right to extraordinary termination for good cause remains unaffected.Notices of termination are only effective in writing.
5. Cooperation Duties on the Part of the Customer
The Customer shall provide assistance and supplies as an ancillary contractual service.
The Customer shall support shopware and create all necessary, reasonable and possible conditions for the provision of services by shopware in accordance with the terms of the contract.
For this purpose, the Customer shall in particular provide all necessary information without being asked, e.g. access data to servers, providers, Internet shops, administration areas. The Customer shall also ensure that expert personnel are available to support the shopware. The customer is responsible for the proper and at least daily data backup, in particular before installation of the shop software, software extensions as well as patches and updates.
The Customer shall report malfunctions, including defects, in comprehensible and detailed form in text form, stating all information relevant for the detection and analysis of the malfunction. In particular, the work steps that led to the occurrence of the fault, the frequency of occurrence and the effects of the fault must be specified.
The Customer must follow the instructions given by shopware when describing, limiting, detecting and reporting errors.
During the execution of the support services, the Customer is personally present or delegates competent employees who are authorized to judge and decide on errors, functional enhancements, function reductions as well as changes of the Shop Software structure. If necessary, other work on the system environment must be stopped during the work.
The Customer shall name a responsible contact person. The latter may make binding decisions for the Customer or bring about such decisions without delay and is entitled to make legally binding declarations in connection with the contracts concluded by the parties. The contact person is available to shopware for necessary information.
Unless otherwise agreed, the Customer shall additionally store all documents, information and data handed over by shopware and required for the provision of services by shopware in such a way that these can be reconstructed in the event of damage or loss of data carriers.
The Customer undertakes to take appropriate technical and organisational measures to ensure that the intended, legal and contractual use of shop software and software extensions is ensured.
shopware can demand additional reimbursement of your expenses if
a) shopware acts on the basis of a report without any malfunction or defect, unless the Customer is not responsible for the unfounded report, or
b) additional expenses are incurred due to non-contractual fulfilment of the Customer's obligations and the Customer is responsible for this.
The Customer shall ensure that the contact person designated by him provides shopware with all documents, information and data necessary for the provision of the service in a complete, correct, timely and free of charge, unless owed by shopware. Beyond that the Customer provides for their update. shopware may assume the completeness and correctness of these documents, information and data, unless these are obviously recognizably incomplete or incorrect for shopware.
The Customer shall carefully store the software and all associated access data and take all measures necessary and reasonable in accordance with the current state of the art to prevent misuse. In particular, the Customer shall ensure that any unauthorized access to administration access is excluded.
The Customer is not permitted to change or remove any copyright notices, proprietary notices or other shopware characteristics without authorization.
The Customer undertakes to refrain from all measures which endanger or disrupt the functioning of the software and not to access data which he is not entitled to access. Furthermore, he must ensure that his information and data transmitted via the software are not infected with viruses, worms or Trojans.
The Customer undertakes to compensate shopware for all damages resulting from the non-observance of these obligations and, in addition, to indemnify shopware from all claims of third parties, including attorneys' and court costs, which they assert against shopware due to the non-observance of these obligations by the User. This does not apply if the Customer is not responsible for the breach of duty.
6. Cession of Rights
The Customer may assign rights from the contract to third parties only with the consent of shopware. shopware will only refuse the consent for good cause.
shopware is entitled to transfer the contracts concluded with the Customer in whole or in part or only because of individual rights from these contracts to third parties. If the third party is a company affiliated with shopware within the meaning of §§ 15 ff. AktG, the transfer is also effective without the consent of the Customer. Otherwise shopware will inform the Customer in good time about the intended transfer. If the Customer objects to the transfer, it does not become effective. In this case shopware is entitled to terminate the affected contract for good cause at the time of the intended transfer.
shopware is further entitled to subcontract all services to the Customer. The contract between the Customer and shopware remains unaffected by this.
7. Reservation of Proprietary Rights
shopware retains the ownership of delivered goods until full payment of the owed remuneration and fulfilment of all claims from the business relationship with the Customer.
The Customer shall inform shopware immediately in text form if third parties assert rights to the goods delivered under retention of title, e.g. in the event of seizure or insolvency of the Customer. The Customer shall immediately inform the third party of the retention of title in favour of shopware.
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 warrants in case of material defects by subsequent performance. For this purpose shopware leaves a new, defect-free software version to the Customer at his discretion or removes the defect.
The period of limitation for claims for defects is one year and begins with handover. In the event of intent, gross negligence, malice, personal injury, defects of title, guarantees or claims under the Product Liability Act, the statutory limitation periods shall apply.
Claims for defects of the Customer are excluded if the Customer uses the shop software or software extensions for a purpose other than that stipulated in the contract or has made changes or extensions to the shop software or software extensions, in particular to the source code, and the improper use or modification is the cause for the defect that has occurred.
If the Customer claims a defect in a software extension purchased in the Community Store and not manufactured by shopware, the Customer has to assert claims for defects primarily against the manufacturer of the software extension. For this purpose shopware assigns all own warranty claims against the manufacturer to the Customer.
Notwithstanding this, shopware is obliged to take the following measures at all times:
shopware will provide a version of the software extension available from the manufacturer during the warranty period to remedy the defect. If such a version is not available, shopware will offer a workaround solution. If a workaround solution is also not possible or reasonable, shopware will support the manufacturer in providing a version of the software extension that remedies the defect as soon as possible. shopware will provide information on the measures taken in this regard at the Customer's request. A workaround solution is particularly unreasonable for shopware if its provision requires an intervention in the source code/object code of the software extension.
The Customer shall be obliged to install/operate a version of the software extension that remedies the defect at his own expense. This only does not apply if this is not possible or reasonable for the Customer, because the new version differs substantially from the previous version or because the Customer incurs considerable expense through installation/commissioning.
shopware is liable for damages from injury to life, body or health as well as in case of intent and gross negligence without limitation. In case of simple negligence, liability is limited to the violation of so-called "essential contractual obligations"; these are all obligations, the performance of which is essential to enable the Customer to make use of the services owed by shopware and on whose compliance the Customer regularly relies or may rely. However, liability in the event of a breach of an essential contractual obligation is limited to the foreseeable, contract-typical damage.
shopware is only liable for the loss of data in accordance with the above paragraphs if such a loss would not have been avoided by the data backup measures to be taken but not taken by the Customer. The liability does not extend to impairments of the contractual use of the services provided by shopware which have been caused by an improper or faulty claim by the Customer without the cooperation of shopware.
The above limitations of liability shall also apply mutatis mutandis in favour of shopware's vicarious agents and organs.
11. Protected Third Party Rights
shopware exempts the Customer from claims of third parties arising from the infringement of industrial property rights (in particular trademarks, designs, patents, copyrights) through shop software or software extensions purchased from shopware.
The Customer shall not make any statements to the third party regarding the infringement of industrial property rights without express consent in text form, in particular shall not acknowledge any rights or facts and shall otherwise assume liability.
shopware is entitled to either (a) modify the shop software or software extension at its own expense in such a way that the infringement of property rights no longer applies, or (b) acquire the necessary rights from the third party for passing on to the Customer. If the infringement of industrial property rights can be remedied by installing a patch or update, the customer is obliged to do so, unless this is not possible or reasonable for the Customer because the new version differs significantly from the previous version or considerable effort is incurred by the Customer due to installation/commissioning.
The Customer shall inform shopware immediately in text form if he is informed of the infringement of property rights by the shop software or a software extension.
12. IT Security
The Customer shall be responsible for measures pursuant to IT-security.
13. Export control, cross-border deliveries
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, taxes or other charges incurred. The Customer shall handle statutory or governmental procedures in connection with cross-border deliveries or services on their own responsibility.
14. Data Protection
Data is collected, processed and stored exclusively in accordance with German data protection law. The data protection declaration of shopware at https://de.shopware.com/datenschutz/. applies.
Both contracting parties undertake to comply with the statutory provisions on data protection. In particular, they will oblige their employees to observe data secrecy in accordance with § 5 BDSG.
15. Choice of Law
All legal relationships arising from this contractual relationship shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws provisions; Art. 3 para. 3, para. 4 Rome I Regulation shall remain unaffected.
16. Court of Jurisdiction
If the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all legal disputes arising from this contractual relationship and within the framework of the execution of this contractual relationship is the place of business of shopware.
17. Right of Modification
For new contracts, the current General Terms and Conditions shall apply in each case.
shopware reserves the right to change these terms and conditions for current contracts. Such changes become effective if the customer does not object to the change within one month after receipt of a change notice in text form and shopware has informed the customer in the change notice of the right of objection and the period applicable thereto. If the customer objects to the amendment in text form, the previous GTC shall continue to apply. In this case, the provider is entitled to terminate the affected contract within two weeks after receipt of the objection for good cause. Excluded from this reservation of modification are such changes which refer to essential contractual obligations of one of the parties.
18. Written Form, Storage of Customer Data, Partial Invalidity
All orders and orders require the written (order) confirmation by shopware.
Oral subsidiary agreements have not been made. Amendments or changes must be made in writing. This also applies to the cancellation of the written form.
The invalidity of individual provisions shall not affect the validity of the remaining provisions. In this case the contracting parties will make a new effective provision which comes closest to the ineffective provision in economic terms. This applies accordingly in the event of a gap in the contract not foreseen by the contracting parties.