General Terms and Conditions (GTC)
1. overview of the essential content of the services offered by Shopgate GmbH
Shopgate GmbH (hereinafter referred to as "Shopgate") offers companies a technical infrastructure for the implementation of individual, mobile-based services as a Platform-as-a-Service. The details of the services are set out in the offer/contract (hereinafter referred to as "Individual Contract") referring to these General Terms and Conditions (hereinafter referred to as "GTC") and other documents referred to in the Individual Contract.
The following terms shall have the following meaning in the context of the individual contract and these GTC:
Means, in accordance with the provisions of Section 8 ("Acceptance Criteria"), the criteria set out in the individual contract which apply to the acceptance of services and/or work results.
Refers to tests regulated in the individual contract which relate to the inspection and acceptance of the agreed services and/or work results.
Denotes a period of 8 hours.
Designates the offer or the contract that refers to these GTC, including the associated appendices; (in particular the appendices "Service Description", "Individual Functional Extensions" as well as "Contract for Commissioned Data Processing pursuant to Art. 28 DSGVO".
Refers to the parts of the remuneration that are agreed in the individual contract as fixed prices (i.e. without dependence on a time expenditure or similar).
INTELLECTUAL PROPERTY RIGHTS:
Refers to copyrights, patents, trademarks, database rights, inventions, trade secrets, know-how and other industrial property rights.
In relation to a party, means circumstances outside the scope of what an objective observer would consider to be that party's sphere of influence, including governmental actions, war, strikes and the like.
Indicates the start of the term of the individual contract.
Designates, in relation to a party, a company that is a group company within the meaning of Section 18 AktG in relation to that party.
Refers to data (in whatever form) from the customer's sphere of possession or control which the customer makes available to Shopgate in connection with the individual contract.
Refers to the customer and its group companies.
Has the meaning defined in section 3 (Runtime).
Means an effective date or event related to Shopgate's obligations under the Individual Agreement that is expressly designated as a "Milestone" in the Individual Agreement.
Designates the parties to the individual contract (or one of the two parties).
Refers to a deployment environment in which real data is productively worked with.
Designates Shopgate GmbH, which is registered in the Commercial Register of the Friedberg Local Court under HRB 5951.
Refers to a deployment environment on which fictitious test data is worked with.
TOTAL ACTIVE INSTALLATIONS (TAI):
TAI is the sum of all active, installed apps that have been installed on an iOS or android smartphone and launched at least once within the last 6 months.
AGREED DAILY RATES:
Refers to the remuneration regulated in the individual contract or, in the absence of a regulation, the usual remuneration per working day within the meaning of Section 612 (2) of the German Civil Code (the rates may vary depending on the function or hierarchical level of the employees deployed).
Refers to the remuneration to which Shopgate is entitled and which is set out in the individual contract and/or these General Terms and Conditions or which is calculated/incurred in accordance with the principles set out therein.
Means a period of 12 months from the Effective Date of the Individual Agreement and any subsequent continuous period of 12 months during the term of the Individual Agreement.
Means any information of a party which by its nature should be treated as identifiably confidential or which is expressly designated as confidential by a party.
MATERIAL BREACH OF CONTRACT
Refers to the breach of contractual obligations by one party, as a result of which, taking into account all the circumstances of the individual case and weighing up the interests of both parties, the other party cannot reasonably be expected to continue the contractual relationship until the agreed termination or until the point in time at which the individual contract can be properly terminated.
3. Term and termination
The commencement of the individual contract ("Effective Date"), its duration ("Term") and any termination rights are set out in the individual contract. The right to extraordinary termination remains unaffected (see Section 16 regarding the right to extraordinary termination and regarding further termination rights for the customer).
Cancellation declarations must be in writing and can be sent with a valid electronic signature to firstname.lastname@example.org or by post to the following address:
4. Commissioned data processing
Insofar as Shopgate processes personal data on behalf of the customer within the meaning of Art. 4 No. 1 DSGVO, the provisions of the "Contract for Commissioned Data Processing" pursuant to Art. 28 DSGVO shall apply in addition.
5.1 PROHIBITION OF DISCLOSURE OF CONFIDENTIAL INFORMATION
The Parties mutually undertake to treat all Confidential Information of the other Party that becomes known to them during the performance of the Individual Contract as strictly confidential, i.e. not to disclose it to third parties and to treat it confidentially with due care (including reasonable precautions to prevent prohibited disclosures). The Parties mutually undertake to grant access to Confidential Information only to those of their employees who are
a. have signed appropriate confidentiality undertakings or are subject to specific legal or professional confidentiality obligations; and
b. have a reasonable need to know the confidential information.
5.2 PROHIBITION OF USE
To the extent that a Party's Confidential Information is protected against disclosure under the provisions of Section 5.1, the Parties further agree to use such Confidential Information only for the purpose of performing the Individual Agreement.
The parties undertake not to register any protective rights with regard to confidential information of the other party.
5.3 PERMITTED DISCLOSURE
Each Party shall be entitled to disclose Confidential Information of the other Party notwithstanding any prohibition on disclosure under the provisions of Section 5.1 to the extent such Party is required to do so under applicable laws or governmental regulations, provided that such Party gives the other Party prior notice in text form of such disclosure and takes reasonable steps within the bounds of what is lawful to prevent and/or minimize the extent of such disclosure.
5.4 EXCEPTIONS TO THE PROHIBITION OF DISCLOSURE/USE
The provisions of Sections 5.1 ("Prohibition of Disclosure of Confidential Information") and 5.2 ("Prohibition of Use") shall not apply to Confidential Information of a Party in respect of which the other Party having received the Confidential Information can provide evidence,
a. that they were generally known at the time of disclosure or use;
b. that they came to the knowledge of the party concerned through sources other than the other party or one of its group companies, without that source having breached any obligation of confidentiality in this respect towards the other party or its group companies;
c. that the Confidential Information was obtained independently and without breach of any obligation of confidentiality owed to the other Party or its affiliates.
The services owed by Shopgate are outlined in the individual contract.
It is clarified that these services do not include any delivery of or transfer of rights to software, unless this is expressly agreed.
7. records and documentation
Shopgate shall keep records and documentation regarding the performance of its obligations under the Individual Agreement.
8.1 NECESSITY OF ACCEPTANCE TESTS
Acceptances are to be carried out with regard to certain components of the services if and to the extent that the provisions of the individual contract provide for this.
8.2 ACCEPTANCE CRITERIA
Acceptance criteria are regulated in the individual contract. Insofar as no acceptance criteria are specified with regard to a particular service, the acceptance criteria shall be deemed to have been fulfilled if the tests carried out as part of the acceptance do not reveal any significant restrictions to the agreed functions of the part of the services concerned.
8.3 ACCEPTANCE PROCEDURE
The acceptance procedures, i.e. the methods and procedures to be applied within the framework of an acceptance test, are set out in the individual contract. To the extent that no acceptance procedures are specified with respect to a particular service, Shopgate shall determine the acceptance procedures at its reasonable discretion, which shall generally include a functional test on a test system.
8.4 COOPERATION IN THE CONTEXT OF ACCEPTANCE AND ACCEPTANCE TESTS
Shopgate shall notify the customer in text form (e.g. fax or e-mail) that the relevant part of the services is ready for acceptance.
Immediately, but no later than seven days after receipt of the notice, the acceptance test shall be carried out by the customer and Shopgate. Each party shall create all necessary conditions and use its best efforts to promote the timely performance of the Acceptance Test, including the provision of appropriately qualified personnel and, in particular in the case of functional tests on a test system, the provision of necessary data and the availability of the IT systems.
After successful completion of the acceptance test, the customer shall immediately send Shopgate a written declaration of acceptance by e-mail. The acceptance test shall be deemed to have been successfully completed if the acceptance criteria for the respective component of the services to be accepted have been met and the acceptance declaration shall be deemed to have been submitted if the customer does not specify in text form within seven days of completion of the acceptance test the reasons why, in its opinion, the acceptance criteria have not been met.
If, during an Acceptance Test, one of the Parties becomes aware of circumstances that could prevent the successful completion of the Acceptance Test, it shall immediately inform the other Party thereof.
8.5 FAILURE OF ACCEPTANCE TESTS
If the acceptance test is not successfully completed, Shopgate shall, at no additional cost to the customer, correct the underlying defects within a reasonable period of time so that the acceptance criteria are met and inform the customer as soon as the relevant components of the services are ready for a repeated acceptance test. The provisions of this Section 8 shall apply accordingly if a repeated acceptance test is not successfully completed without the customer having contributed to the reasons for the non-successful completion, then the customer shall be entitled,
a. either again require Shopgate to promptly correct the underlying defects so that the Acceptance Criteria are met in order to conduct another repeat Acceptance Test (in which case the provisions of this Section 8 shall again apply mutatis mutandis);
b. within a period of seven days after completion of the failed Acceptance Test, reject the relevant part of the Services to be accepted;
c. if, in the reasonable discretion of the customer, there is no interest in the further provision of services due to the failed acceptance test, to refuse the further provision of these services.
However, the rights of the customer according to the above letters b. and c. are generally only available to the customer if three acceptance tests have not been successfully completed.
The individual contract ends with the justified refusal of the further provision of services.
It is clarified that the services within the scope of the platform-as-a-service operation are provided on an ongoing basis within the scope of a continuing obligation and are by their nature not subject to acceptance (and, to the extent that the services have already been provided, also not subject to "rejection"). Disruptions within the scope of this service provision are regulated within the scope of the service description.
Unless otherwise provided, neither Party grants to the other Party any rights in its Intellectual Property. Each Party may use the Intellectual Property of the other Party only to the extent necessary for the performance of the Individual Contract.
Subject to and without prejudice to the provisions of Section 5, both Parties shall be entitled to use the know-how of the respective other Party which has become known to them in the course of the performance of the Individual Agreement. However, it is clarified that know-how of a party which is not generally accessible shall be deemed to be a trade secret of that party and shall therefore be treated confidentially in accordance with the provisions of Section 5.
9.3 USER MANUALS AND SIMILAR DOCUMENTATION
Shopgate grants the customer a non-exclusive, non-transferable right, unrestricted in time and place, to use user manuals and comparable documentation (whether provided in embodied or electronic form) which Shopgate makes available to the customer under the individual contract. The customer may only make use of such user manuals and comparable documentation for business processes within the customer group.
As a general rule, neither party shall grant the other party rights to software or develop software in which the other party is to obtain rights under the individual contract.
If Shopgate supports the customer in implementing the interface specified by Shopgate in the customer's systems by providing/programming software code, the customer is entitled to use this software code without restriction for as long as the contractual relationship exists.
10 Obligations of the customer to cooperate
10.1 SCOPE OF THE DUTIES TO COOPERATE
The parties agree that the provision of Shopgate's services depends on the fulfilment of the customer's duties to cooperate and that a non-fulfilment or late fulfilment of duties to cooperate may lead to delays in the provision of the services, to qualitative impairments of the services and to additional expenses for Shopgate. The timely fulfilment of the duties to cooperate is therefore crucial for the performance of the individual contract.
The customer has the obligations to cooperate agreed between the parties in the individual contract, but in particular those listed below:
a. Provision of the required relevant information (including information about the customer's business processes and data structure) and data with the required quality, completeness and accuracy (anonymised or pseudonymised if necessary).
b. Avoiding the provision of redundant or erroneous data.
c. Appointment (and, if necessary, replacement) of at least one daily available employee with project-related competence as project manager on the customer side and, if necessary, further employees with sufficient knowledge and experience to ensure a continuous, timely flow of information.
d. Active support of test runs ( which may include tests under simulated live conditions) including the provision of test data and the evaluation/assessment of generated order proposals and forecasts.
e. Implementation of the interface specified by Shopgate for data exchange (including updates to the interface in the event of changes to the specification) while ensuring the necessary security and scalability.
f. Notification of all significant changes to the information provided to Shopgate via the interface, in particular significant extensions to the data or significant changes to the data quality.
If no time or time frame has been agreed with regard to a duty to cooperate, the customer shall fulfil the relevant duty to cooperate within a time frame which is reasonable with regard to the importance of the fulfilment of the duty to cooperate for the continuation of the services.
10.2 CONSEQUENCES OF LATE OR NON-FULFILMENT OF OBLIGATIONS TO COOPERATE
10.2.1 Postponement of agreed dates, deadlines and milestones and failure to meet service levels
In the event of delayed or non-fulfilment of obligations to cooperate on the part of the customer, agreed dates, deadlines and milestones affected by the delayed or non-fulfilment shall be postponed by a period corresponding to the delay caused by the delayed or non-fulfilment.
Shopgate is not responsible for any consequences if service levels cannot be met because the customer does not properly fulfil his obligations to cooperate.
Any adverse consequences for the customer resulting from the customer's delayed or non-fulfilment of duties to cooperate shall not entitle the customer to terminate the individual contract and Shopgate shall be placed in such a position with regard to its rights and claims as if the customer had duly fulfilled its duties to cooperate.
10.2.2 Costs and additional working time
Shopgate is entitled to claim reimbursement of the costs and remuneration (based on a daily rate of EUR 1,200 plus the applicable statutory VAT) of the additional working time resulting from the customer's delayed or non-fulfilment of duties to cooperate. As far as additional working time is concerned, this applies irrespective of whether it is caused by additional work or unusable working time.
10.3 OBLIGATION TO NOTIFY LATE OR NON-FULFILMENT AND TO AVOID ADDITIONAL EXPENSES
Shopgate shall inform the customer without delay if Shopgate becomes aware that the customer will be late in fulfilling its obligations to cooperate or will fail to do so. Insofar as it is necessary for the fulfilment of the customer's duties to cooperate and the assessment of the consequences, Shopgate shall also inform the customer of the expected effects on additional costs and additional working time as well as on agreed dates, deadlines and milestones.
Shopgate shall in principle try to avoid additional costs and additional working time due to the late or non-fulfilment of the customer's obligations to cooperate. However, the parties are aware that the late or non-fulfilment of a customer's obligations to cooperate often leads to unusable working time of employees on the part of the contractor and that the avoidance of delays due to the late or non-fulfilment of a customer's obligations to cooperate normally requires additional working time on the part of the contractor.
11.Remuneration and payment/cessation of services in the event of default in payment
11.1 EXPENSE-RELATED REMUNERATION
Insofar as the remuneration is effort-related,
a. the relevant part of the services shall be invoiced on the basis of the agreed daily rates and for the agreed invoicing period;
b. the expenses for the respective accounting period shall be specified appropriately;
c. in the event of termination of the individual contract prior to completion of all services and transfer of all work results, the customer is entitled to demand reimbursement of that part of the remuneration which has been paid in advance to Shopgate with regard to components of the services not yet performed by the date of termination.
11.2 MONTHLY REMUNERATION
Insofar as a monthly remuneration has been agreed,
a. Shopgate is entitled to demand additional remuneration for additional expenditure on the basis of the provisions of Section 11.1 if Shopgate's expenditure for the services subject to the monthly remuneration turns out to be significantly more extensive than Shopgate could reasonably have estimated at the time of the conclusion of the individual contract, if and to the extent that the additional expenditure could not reasonably have been foreseen because Customer has provided Shopgate with inaccurate information or has withheld information about circumstances about which Shopgate could reasonably have expected to be informed;
b. in the event of termination of the individual contract prior to completion of all services and transfer of all work results, the customer is entitled to demand reimbursement of that part of the monthly remuneration which has been paid in advance to Shopgate with regard to components of the services not yet provided by the date of termination.
11.3 DUE DATE
The due date of the invoices is regulated in the individual contract.
11.4 SALES TAX
The amounts stated in the individual contract for expenses and remuneration are exclusive of value added tax or comparable sales taxes, which are to be paid additionally by the customer.
11.5 SUSPENSION OF SERVICES IN THE EVENT OF LATE PAYMENT
Without prejudice to Shopgate's rights of extraordinary termination in accordance with § 314 BGB (German Civil Code), Shopgate is entitled, after the expiry of a notice period of at least 14 days (calculated from the receipt of the notice of discontinuation of services), to discontinue services to be provided on an ongoing basis if the customer is in arrears with the payment of remuneration at the time of the notice of discontinuation of services in an amount equal to Shopgate's remuneration claim for the services to be provided on an ongoing basis for a period of two months. The customer remains obligated to continue to pay the remuneration for the period of the cessation of performance.
12. Indemnification obligations
Each party shall indemnify the other party against all claims of third parties which arise due to violations of the respective party against its contractual obligations or due to other breaches of duty. The principles of § 254 BGB ("contributory negligence") shall apply accordingly in this respect.
Shopgate has to provide the services in such a way that Shopgate itself does not violate any intellectual property rights of third parties nor does Shopgate cause such violations by the customer.
14 Liability, compensation
Shopgate is liable under the individual contract and these GTC only in accordance with the following provisions under lit. a. to g.:
a. Shopgate is liable without limitation for damage caused intentionally or through gross negligence by Shopgate, its legal representatives or senior employees, as well as for damage caused intentionally by other vicarious agents of Shopgate; for gross negligence by other vicarious agents of Shopgate, liability is determined in accordance with the regulations for slight negligence set out in lit. e below.
b. Shopgate is liable without limitation for damage caused intentionally or negligently by Shopgate to life, limb or health.
c. Shopgate is liable for damages due to the lack of warranted characteristics up to the amount which was covered by the purpose of the warranty and which was recognisable to Shopgate when the warranty was given.
d. Shopgate is liable for product liability damages according to the regulations in the Product Liability Act.
e. Shopgate is liable for damages arising from the breach of cardinal obligations by Shopgate, its legal representatives or Shopgate's vicarious agents; cardinal obligations are the essential obligations which form the basis of the individual contract, which were decisive for the conclusion of the individual contract and on the fulfilment of which the customer may rely. If Shopgate has breached these cardinal obligations through slight negligence, its liability is limited to the amount that was foreseeable for Shopgate at the time of the respective performance.
f. The customer must ensure that no impairments of our services or damages are caused by programming or other work of the customer or of third parties commissioned by the customer (e.g. agencies) on our platform. Should such impairments of our services be caused, these have no influence on our claim to remuneration. Any liability of Shopgate in this context is excluded.
g. In the event that Shopgate acquires or purchases third party products or services for the Merchant in connection with the provision of its services, Shopgate will, in addition to the foregoing representations, warranties and covenants, pass on or assign to the Merchant the rights Shopgate receives from the Company manufacturer and / or seller of such products and services (including warranty and indemnity rights) to the extent such rights are assignable.
Please note in particular for the geotargeting product the conditions listed here:
In the event of a Force Majeure situation, agreed dates, deadlines and milestones affected by the Force Majeure situation shall be postponed by a period equal to the delay caused by the Force Majeure situation and all obligations of Shopgate affected by the Force Majeure situation shall be suspended for the duration thereof, without Shopgate being deemed to be in breach of contract.
15.2 OBLIGATIONS IN THE EVENT OF FORCE MAJEURE
Each Party shall keep the other Party informed of the effects and expected duration of any Force Majeure situation that is threatened or has occurred and shall use reasonable efforts to reduce its effects.
15.3 PERSISTENT HIGHER VIOLENCE
If a force majeure situation lasts longer than 14 days, the customer is entitled to terminate the individual contract in accordance with section 16. Termination by the customer on the basis of this provision shall not be deemed to be termination on the basis of a breach of duty by Shopgate, i.e. the customer shall in particular not be entitled to claim compensation for damages or costs with regard to the premature termination of the contract (for the avoidance of doubt: except for the repayment of prepaid remuneration for services not yet provided).
16. Extraordinary termination by/further termination rights for the customer
16.1 EXTRAORDINARY TERMINATION BY THE CUSTOMER
The customer is entitled to terminate the individual contract for good cause (the declaration of termination by the customer to Shopgate must be in writing) if
a. Shopgate commits a material breach of contract which is not cured within a reasonable period of (unless otherwise agreed) not less than 28 working days after Shopgate receives notice of the breach;
b. Shopgate commits a material breach of contract which cannot be remedied.
16.2 FURTHER TERMINATION RIGHTS FOR THE CUSTOMER
The rights of termination for the Customer pursuant to Section 8.5 ("Failure of Acceptance Tests") and Section 15.3 ("Continuous Force Majeure") shall remain unaffected.
16.3 EXCLUSION PERIOD FOR THE EXERCISE OF TERMINATION RIGHTS
The Customer may exercise the termination rights set out in this clause 16 within 28 Business Days of the Customer becoming aware of the relevant reason for termination. If the Customer does not exercise a termination right within this period, it shall expire.
17. continuing rights
The termination of the individual contract shall have no effect on the rights and obligations of the parties which arose prior to the effective date of the termination, nor on such rights and obligations which are either expressly agreed to continue to apply or which, by their nature, are intended to continue to apply after the termination of the individual contract.
During the term and a subsequent period of 12 months, the customer is obliged to refrain from soliciting Shopgate employees and to ensure that his group companies also refrain from doing so.
In the event of a breach of this obligation, the customer shall be liable for all damages resulting from the breach and shall be obliged, among other things, to reimburse Shopgate for all recruitment costs incurred in the search for replacement employees.
19. Changes and additions
Amendments and supplements to the individual contract or to these GTC must be made in writing to be effective. This shall also apply to any amendment or cancellation of this written form requirement.
20. order of precedence
Unless otherwise provided for in the individual contract or in these GTC, the provisions of the documents listed below shall apply in the following order of precedence in the event of contradictions:
- The provisions of the individual contract before
- the provisions of the (other) annexes to the individual contract before
- the provisions of these GTC.
Shopgate is entitled to name the service provided to the customer as a reference project, mentioning the customer by name.
22 Total Active Installations (TAI)
TAI is the sum of all active, installed apps that have been installed on an iOS or Android smartphone and launched at least once within the last 6 months.
23. Applicable law and place of jurisdiction
The individual contract and the provisions of these GTC are subject to the law of the Federal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Goods).
The place of performance and the exclusive place of jurisdiction for all disputes arising from or in connection with the individual contract and these GTC is at Shopgate's registered office. However, Shopgate is also entitled to sue the customer at his general place of jurisdiction.