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General Terms and Conditions (GTC)

1 General, scope of application

Shopgate GmbH, Schloßstraße 10, 35510 Butzbach (hereinafter referred to as "Shopgate") is the owner of all copyrights and other rights of use and exploitation in the internet-based platform it offers for the development and marketing of mobile shopping apps and of retail.red, a comprehensive omnichannel suite for stationary retail.

These General Terms and Conditions (hereinafter referred to as "GTC") govern the relationship between Shopgate and companies that make use of the services offered by Shopgate as defined in Annex 1 of the individual contract ("Service Description") (hereinafter referred to as "Customers"). These GTC apply exclusively to customers who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

Shopgate's offers and services are provided exclusively on the basis of these General Terms and Conditions, which are supplemented by the provisions in individual contracts and their annexes. Deviating, conflicting or supplementary general terms and conditions of the customer will only become part of the contract with Shopgate if Shopgate expressly agrees to their validity. This requirement for consent also applies if Shopgate provides services without reservation in the knowledge of the customer's general terms and conditions.

2. definitions

The following terms shall have the following meaning in the context of the individual contract and these GTC:

Working day means a period of 8 hours;

Individual Contract means the offer or the contract that refers to these GTC, including the associated annexes (in particular the annexes "Service Description", "Individual Functional Extensions" as well as "Contract for Commissioned Data Processing pursuant to Art. 28 DSGVO");

Branch( es) means one or more locations configured as "branch" in the Shopgate admin area The number of branches is the basis for calculating the contractually agreed basic fee. An increase in the number of branches within the contract period leads to an increase in the monthly basic fee. A reduction of the connected branches within the contract period is not possible;

Intellectual property rights means copyrights, patents, trademarks, database rights, inventions, trade secrets, know-how and other industrial property rights;

Group company means, in relation to a party, a company which is a group company in relation to that party within the meaning of section 18 AktG;

Customer Data means data (in whatever form) from the customer's sphere of possession or control which the customer provides to Shopgate in connection with the Individual Contract;

Milestone means an effective date or event relating to Shopgate's obligations under the Individual Agreement which is expressly designated as a "Milestone" in the Individual Agreement;

Party(ies) means the parties to the individual contract (or one of the two parties);

Productive system refers to a deployment environment on which work is done productively with real data;

Test system means a deployment environment on which fictive test data is worked with;

Contract Year means a period of 12 months from the Effective Date of the Individual Contract and any subsequent continuous period of 12 months during the term of the Individual Contract;

Confidential Information 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;

3. scope of services

Shopgate offers companies a technical infrastructure to develop mobile shopping apps and/or omnichannel solutions and to use them as software-as-a-service. The services offered by Shopgate in relation to the Shopping Apps or retail.red include, on the one hand, services that are required in advance of the operation of the Omnichannel Suite and, on the other hand, the operation of this platform as a "Software-as-a-Service" (hereinafter also referred to as "SaaS solution"), as well as related support services. Unless expressly agreed otherwise, the development of customised solutions or necessary adaptations to the customer's systems is not part of the contract with Shopgate.

The specific scope of services to be provided by Shopgate is set out in the individual contract including its annexes.

Shopgate may provide updated versions of the services offered (SaaS) and will inform the customer electronically of updated versions and corresponding instructions for use and make them available accordingly. Shopgate reserves the right to provide certain functionalities only against additional payment.

Shopgate creates backups of the data generated in the services offered by Shopgate (SaaS) in automated processes at regular intervals. On request, Shopgate will provide the customer with specific data to download and create their own backups. The contractual scope of services does not include compliance with archiving obligations to which the customer is subject. In particular, commercial and tax data generated in the Shopgate platforms may be subject to longer-term retention obligations for which the customer is responsible.

4 Conclusion of contract, term and termination

The contract is concluded by the customer signing the individualised individual contract sent by Shopgate using an electronic signature and returning it to Shopgate by e-mail.

The start of the individual contract ("start of contract"), its duration and the right of ordinary termination are regulated 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 cancellation-de@shopgate.com or by post to the following address:

Shopgate GmbH
Customer Success
Schloßstraße 10
35510 Butzbach

5. obligations of the client

5.1 Principle

The customer is responsible for the use of Shopgate's services, the proper processing of his data and the results achieved through the use of Shopgate's services.
The customer shall fulfil its obligations to cooperate fully, professionally and in a timely manner. Unless otherwise agreed, all obligations to cooperate must be fulfilled upon conclusion of the contract.

5.2 Ownership

Shopgate is not responsible for ensuring that the distribution of your goods via the Shopgate platform is legally permissible. This applies, for example, to sales bans or sales restrictions with regard to legal regulations such as the law on the protection of minors, the law on the marketing of medicinal products and the food, consumer goods and animal feed code.

Shopgate is furthermore not responsible for ensuring that the manner of distribution is permissible and that e.g. statutory information obligations, instruction obligations etc. are complied with. The guarantee of legal admissibility and the fulfilment of legal obligations is the sole responsibility of the customer.

It is the customer's responsibility to check whether the services offered by Shopgate meet his actual and legal requirements.

5.3 Provision of data for integration in retail.red

The customer shall provide the data described in more detail in the annex to the individual contract (in particular categories, products and stocks) in the manner described therein. To the extent necessary, the data shall be anonymised or pseudonymised before being provided by the Client. It is the customer's responsibility to avoid providing superfluous or incorrect data.

Unless otherwise specified, the data can be provided both manually via CSV file and via automated API interfaces. If the customer provides the data manually, only a limited range of functions is available to him. Shopgate will provide API documentation for any interfaces to be programmed for data transmission at docx.retail.red.

5.4 Other obligations of the customer

The customer shall also

  1. appoint and, if necessary, replace at least one contact person with project-related competence as the project manager on the client side who can be reached during the client's normal business hours.
  2. To the extent necessary, the Client shall provide additional staff with sufficient knowledge and experience to ensure a continuous, timely flow of informationfl.
  3. actively support test runs. This applies in particular to tests in simulated live conditions and includes in particular the provision of test data as well as the evaluation/assessment of generated order proposals and forecasts.
  4. independently implement the interface specified by Shopgate for the exchange of data and - where necessary - update it, unless expressly regulated otherwise. The customer is independently responsible for ensuring the necessary security and scalability.
  5. notify Shopgate of all significant changes to the information provided via the interface, in particular significant extensions to the data or significant changes to the data quality.
  6. Follow conflict notices and instructions when using Shopgate's services to avoid errors - as far as this is not unreasonable - and if you have any doubts about the use of the services, contact support;
  7. check whether he/she is entitled to use the data before transferring it to Shopgate and obtain any necessary rights of use or consents from third parties;
  8. ensure that no third party rights are infringed by the provision and contractual use of data and content;
  9. keep the access authorisations assigned to him/her secret, not pass them on to unauthorised persons and protect them from access by third parties. If there is any suspicion that access data or passwords have become known to unauthorised persons, the customer will inform Shopgate immediately;
  10. refrain from unauthorised retrieval of data or information, either by themselves or through third parties, or from interfering with Shopgate's data networks or programmes, or having them interfered with;
  11. not misuse the services of Shopgate or allow them to be misused, in particular not transmit any information with immoral or illegal content and not refer to such information that serves to incite the people, incite criminal offences or glorify or trivialise violence, are sexually offensive or pornographic, are capable of seriously endangering children or young people morally or impairing their well-being or can damage the reputation of Shopgate;
  12. transfer, assign or pledge rights and obligations under the individual contract to third parties only with Shopgate's prior written consent.

5.5 Effects of late or non-fulfilment of obligations to cooperate

If the customer does not fulfil the obligations incumbent upon him - in particular the provision of data - or does not do so as agreed or in good time, the dates, deadlines and milestones promised by Shopgate will be postponed by a reasonable period of time.

In this case Shopgate will set the customer a reasonable period of grace to fulfil its obligations to co-operate and inform the customer of the consequences of non-fulfilment. If the period of grace expires without result, Shopgate is entitled to carry out justifiable actions itself and to demand appropriate remuneration for the additional expenditure incurred as a result.

6. remuneration and payment/cessation of services in the event of default in payment

The client is obliged to pay the agreed remuneration in due time. The amount of the remuneration, the type of billing (effort-based and/or monthly billing as well as separate fees and expenses) as well as their due date are set out in the individual contract. The remuneration and other expenses listed in the individual contract are exclusive of the statutory value added tax.

Insofar as effort-based remuneration has been agreed, invoicing will be based on the agreed daily rates and for the agreed invoicing period. Shopgate will attach to the invoice a statement of the expenses incurred. Shopgate reserves the right to make the provision of services dependent on the payment of an appropriate advance.

Insofar as a monthly remuneration has been agreed, Shopgate reserves the right to invoice additional expenses in accordance with the provisions of clause 5.5. Shopgate is entitled to adjust the monthly remuneration during the term of the contract if it transpires that the customer has withheld material information or provided false information at the time of the conclusion of the contract and this leads to considerable additional expenditure for Shopgate.

Without prejudice to Shopgate's rights of extraordinary termination pursuant to Section 314 of the German Civil Code (BGB), Shopgate is entitled, after the expiry of a notice period of at least 14 days (calculated from the date of 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 amounting to at least two monthly fees, calculated from the date of the notice of discontinuation. The customer shall also remain obliged to continue payment of the remuneration for the period of the suspension of services.

7. data protection

Insofar as Shopgate processes personal data transmitted by the customer within the meaning of Art. 4 No. 1 DSGVO, Shopgate will - with the exception of the contract data and the customer's contact data - act exclusively as the customer's order processor (Art. 28 DSGVO). Shopgate will process and use this transmitted personal data of third parties only for the performance of the contract and only in accordance with the instructions of the customer. Shopgate and the customer will conclude a contract for commissioned data processing in order to regulate details in writing in the handling of personal data in accordance with Art. 28 DSGVO. This commissioned data processing contract will be attached to the individual contract as an annex. The processing of the contractual data and the contact data processed in the contractual relationship between Shopgate and the customer shall be the sole responsibility of Shopgate.

8. Confidentiality

8.1 Handling confidential information

The parties mutually undertake to treat all confidential information of the other party which 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 confidentiality agreement contained in this paragraph shall not apply to such information as the parties have obtained from third parties in a legally permissible manner or which is in the public domain.

The Parties shall ensure that their employees, agents or other persons having access to the Information are subject to the same confidentiality obligation as set out above.

8.2 Exception to the prohibition of disclosure/use

Information that is demonstrably in the public domain at the time of use or disclosure is exempt from the above provisions;

  1. were already known to the party at the time of the conclusion of the individual contract or become known thereafter from a third party, i.e. neither from the other party nor from one of its group companies, without this violating a confidentiality agreement, statutory provisions or official orders;
  2. which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the party obliged to disclose shall inform the other party in advance and give it the opportunity to oppose the disclosure.

9. decrease

9.1 Necessity of acceptances

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.

9.2 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.

9.3 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.

9.4 Cooperation within the framework of acceptance and acceptance tests

Shopgate will notify the customer in text form (e.g. fax or e-mail) that the relevant component of the services is ready for acceptance. Shopgate will inform the customer of the cooperation required for acceptance at the latest at the time of notification of readiness for acceptance. In particular, the customer will provide qualified personnel and the necessary data and ensure the availability of the IT systems.

Immediately, but no later than seven days after receipt of the notification, the acceptance test must be carried out by the customer and Shopgate.

After successful completion of the acceptance test, the customer shall immediately send Shopgate a declaration of acceptance by e-mail in text form. 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 the 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.

9.5 Failure of acceptance tests

If the customer complains about services in due time, Shopgate will comment on this within a reasonable period of time. If the service owed has significant defects, Shopgate must rectify these within a reasonable period of time at no additional cost to the customer. Shopgate will inform the customer as soon as the relevant components of the services are ready for a repeated acceptance test.

If significant defects are not remedied even after expiry of the deadline, without the customer being responsible for this, the customer shall be entitled,

  1. again require Shopgate to remedy the underlying defects without delay so that the acceptance criteria are met in order to carry out a further repeated acceptance test (in which case the provisions of this Section 9 shall apply accordingly);
  2. or, within a period of seven days after completion of the failed acceptance test, to reject the relevant component of the services to be accepted;
  3. or if, in the reasonable discretion of the Client, there is no interest in the further provision of services due to the failed acceptance test, to refuse the further provision of these services and to terminate the individual contract extraordinarily.

The Customer shall only be entitled to the rights of the Customer under the above letters b and c if three acceptance tests in succession have not been successfully completed.

10 Intellectual property

10.1 Principle

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.

10.2 User manuals and comparable documentation

Shopgate grants the customer a simple (non-exclusive), non-transferable right, unlimited in time and place, to use user manuals and comparable documentation for its own purposes. This applies both to user manuals and comparable documentation in embodied or electronic form). The use for the customer's own purposes also includes the transfer and reproduction within the customer's group companies.

10.3 Software

Unless expressly agreed otherwise, Shopgate does not grant the customer any rights to the platforms and SaaS solutions provided for use.

Insofar as Shopgate supports the customer in implementing the interface specified by Shopgate in the customer's systems by providing/programming software code, Shopgate grants the customer a simple (non-exclusive), non-transferable right to use the programming service in accordance with the contract, unlimited in terms of location and limited in time to the duration of the contractual relationship. The source code shall not be handed over to the customer.

11. indemnification obligations

Without prejudice to the provisions in clause 13, each party shall indemnify the other party against all claims of third parties which arise due to breaches by the respective party of its contractual obligations or due to other breaches of duty. The principles of § 254 BGB ("contributory negligence") shall apply accordingly in this respect.

12. Warranty

Shopgate warrants the functional and operational readiness of the SaaS solution and the related service offerings in accordance with the terms of the individual contract. Unless otherwise stipulated below, the statutory provisions on warranty shall apply.

Insofar as service levels have been promised by Shopgate, the provisions agreed therein regarding the availability of the services shall only apply once all integration services have been completed.

13 Liability, compensation

Shopgate is liable under the Individual Contract and these GTC only in accordance with the following provisions:

  1. Shopgate has unlimited liability for damage caused intentionally or by gross negligence by Shopgate, its legal representatives or senior employees, as well as for damage caused intentionally by other vicarious agents of Shopgate;
  2. Shopgate shall be liable without limitation for damage caused by it intentionally or negligently from injury to life, limb or health.
  3. 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.
  4. Shopgate is liable for product liability damages in accordance with the provisions of the Product Liability Act.
  5. 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 pflichten through slight negligence, liability is limited to the amount that was foreseeable for Shopgate at the time of the respective performance.

Notwithstanding the application of the above provisions, Shopgate's strict liability for damages (pursuant to Section 536a of the German Civil Code (BGB)) for defects existing at the time of the conclusion of the contract is excluded.

The customer must ensure that programming or other work by the customer or third parties commissioned by the customer (e.g. agencies) on the Shopgate platform does not impair the services or cause other damage. If such impairments of the services are caused, these have no influence on our claim to remuneration. Any liability on the part of Shopgate in this context is excluded.

In the event that Shopgate acquires third party products or other services for the Customer from third parties in connection with the provision of the Services, Shopgate will pass on or assign to the Customer the rights Shopgate receives from the third party (including warranty and indemnity rights) to the extent that such rights are assignable.

14 Geotargeting

The following conditions apply in addition to the use of Goetargeting products:
https://www.plotprojects.com/wp-content/uploads/2018/02/GENERAL-CONDITIONS-PLOT-PROJECTS.pdf

15 Force majeure

15.1 Principle

Shopgate is released from the performance of the individual contract in the event of and for the duration of force majeure insofar as the non-performance of the service is attributable to the occurrence of this condition after the conclusion of the contract. A case of force majeure exists in particular in the event of

  1. fire/explosion or floods and other natural disasters for which Shopgate is not responsible;
  2. War, riots, strikes, expropriations, pandemics, cardinal changes in law as well as other circumstances for which Shopgate is not responsible;
  3. technical problems with the internet or the power grid that cannot be influenced.

15.2 Obligations in the event of forcemajeure
Each party shall immediately notify the other party in writing of the occurrence of a case of force majeure. The parties shall inform each other of the effects and the expected duration and shall use reasonable efforts to reduce the effects of the non-performance.

16 Extraordinary termination
Both parties are entitled to terminate the individual contract for good cause.
An important reason exists in particular if

  1. Shopgate or the customer commits a serious breach of the provisions of the individual contract or these GTC so that it is no longer reasonable for the other party to adhere to the contract;
  2. the customer is in default of payment for at least two consecutive months;
  3. insolvency proceedings are opened against the assets of a customer or a corresponding application to open insolvency proceedings is rejected for lack of assets

Extraordinary termination due to a serious breach of duty is only possible after prior written warning, observing a period of 28 working days. If the customer has knowledge of the circumstances justifying extraordinary termination for longer than 28 working days, the termination can no longer be based on these circumstances.

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 those 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.

18. non-solicitation
During the term of the individual contract and a subsequent period of 12 months, the customer is obliged to refrain from soliciting Shopgate employees and to ensure that its group companies also refrain from doing so.

For each case of culpable infringement, the customer undertakes to pay a contractual penalty to be determined by Shopgate in terms of amount and to be reviewed by the competent court in the event of a dispute.

19 Individual Amendments and Supplements; General Amendment to these GTCs
Individual amendments and supplements to the individual contract and to the GTC in this version must be made in writing to be effective. This also applies to any amendment or cancellation of this written form requirement.
 
Shopgate is entitled to amend these GTC with effect for the future, insofar as this is necessary for valid reasons, i.e. due to changes in the law or supreme court rulings, technical changes, new organisational requirements of mass traffic, regulatory gaps in the GTC, changes in market conditions or other comparable reasons and does not unreasonably disadvantage the customer. Shopgate will inform the customer of this in text form. The current GTC are available at www.shopgate.com/agb. If the customer does not object to the respective amendment in text form within six (6) weeks of receipt of the notification of the amendment, this is deemed to be consent to the amendment. Shopgate will inform the customer of this fictitious consent and the right of objection in the respective notification of change.
 
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:
  1. The provisions of the individual contract before
  2. the provisions of the (other) annexes to the individual contract before
  3. the provisions of these GTC.

21 Reference
Shopgate is entitled to name the service provided to the customer as a reference project, mentioning the customer by name.

22 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.

23. miscellaneous
Should any provision of these GTC be or become invalid, the validity of the remaining provisions shall not be affected.

The customer may only set off any of its own claims against Shopgate's claims if its counterclaim is undisputed or has been finally adjudicated or if it concerns counterclaims arising from the same legal relationship; this also applies to the assertion of rights of retention by the customer.

There are no verbal ancillary agreements.