AGB

Smartstore is a registered trademark of SmartStore AG from Dortmund. EUTM file information 001663384 - 18/05/2000: https: //euipo.europa.eu/eSearch/#details/trademarks/001663384

1 Introduction and definitions

1.1 Licensing of Smartstore

The store software Smartstore Community Edition CE https://github.com/smartstore/Smartstore (hereinafter referred to as "basic software" ) is subject to the GNU/AGPLv3 and may be used by the contractual partner (hereinafter referred to as "customer") of SmartStore AG, Kaiserstr. 63-65, 44135 Dortmund (hereinafter referred to as "SmartStore") in accordance with the GNU/AGPLv3.

There are various license and support models for the Smartstore store software that goes beyond the basic software:

On the one hand, SmartStore offers the purchase of a usage authorization (software license) for a specific edition for an agreed one-off price, which differs depending on the agreed scope through the assignment of individual proprietary Smartstore plug-ins. The Smartstore plug-ins are NOT subject to the GNU/GPL, but to the End-User License Agreement (EULA) agreed between SmartStore and the customer. In relation to this, SmartStore offers separate fee-based support with different scopes of services, depending on the agreement.

On the other hand, SmartStore offers a license to use the latest version of the Smartstore software with associated proprietary plug-ins, including support, for a certain period of time in return for a usage fee of an agreed amount ("rental").

1.2 Definitions

1.2.1 Documentation refers to materials in printed or electronic form that describe the functions of the basic software, the plug-ins, the updates and/or upgrades and that serve to support the customer in the effective use of the store software, the plug-ins, the updates and/or upgrades. Such documentation does not change any contractually agreed provisions, in particular neither those of an EULA nor any other contractually agreed terms and conditions.

1.2.2 Initial installation without hosting commitment NO certified or special hosting partneris requiredfor the initial installation of the Smartstore Shop .

1 .2.3 The initial response time for support requests refers to the period of time during which SmartStore begins processing the support request, not the time for the final processing or even elimination of any malfunction.

1.2.4 Support and service times (SSZ) in this context are the business hours of SmartStore during which agreed services, e.g. regarding maintenance, updates and support, are provided. These are Monday to Friday from 9 a.m. to 5 p.m. (UTC+1) outside public holidays on working days in North Rhine-Westphalia, Germany.

1.2.5 Customer refers to the entrepreneur who is the contractual partner of SmartStore. An entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) is a natural or legal person or a partnership with legal capacity that is exercising its commercial or independent professional activity when concluding a legal transaction. SmartStore's offers relating to its store software are aimed exclusively at entrepreneurs.

1.2.6 License refers to the customer's right to non-exclusive use of the store software on the basis of the contract concluded in accordance with the EULA and SmartStore's General Terms and Conditions.

1.2.7 Multishop operation (subshop ) (subshop) enables store operators to manage their product data for several online stores centrally. Product data can be transferred individually to different stores. The store operator can use various filters to restrict or select the products to be transferred. Orders from the individual stores can be managed via a central "backend" order processing system. In multishop operation, several subshops/shop groups (subshop) can be managed via a single "backend" and several subshops/shop groups (subshop) can be created "frontend" according to the respective product information. Licenses in a multi-shop operation are only free of charge if the same company is named in the legal notice in all stores. If the company data in the imprint of the different stores differs, additional licenses must be purchased.

1.2.8 Plug-in refers to a software extension or an additional module for an existing software.

1.2.9 Standard contract term the standard contract term can vary from product to product.

1.2.10 Service pack or hotfix is a term used by various manufacturers for the compilation of patches to update one of their operating systems and other software products.

1.2.11 Shop software in this context refers to the SmartStore computer programs in object code format, Pro/ and MP/plug-ins, including all associated updates and upgrades, which SmartStore provides and for which SmartStore agrees an EULA with the customer.

1.2.12 SmartStore basic software "Community Edition" (CE) is, in addition to the operating system, absolutely necessary for the operation of an online store system and is open source software (OS). Open source refers to software whose source code is public and can be used by third parties.

1.2.13 A Smartstore instance (self-contained unit) refers to an installation of Smartstore on exactly one web server and one database that is referenced by this installation. It does not matter whether the database server in which this database is integrated is installed on the web server or - for load sharing purposes - on an external server. The condition applies equally in a cloud or docker environment. Each additional SmartStore instance requires a new license, which can be purchased from SmartStore. A license is always linked to a URL, which means that a separate license is required for each URL. An exception to this rule only exists in the context of a multi-shop operation, as described in section 1.2.7.

1.2.14 Smartstore Pro/ and MP/Plug-ins are additional programs that are integrated into the basic software via a predefined interface and extend its range of functions.

1.2.15 Support in this context is the umbrella term for general solution-oriented consulting activities and technical support services for inquiries about the store software and for software maintenance.

1.2.16 A man-day is the average amount of work a person completes in eight hours.

1.2.17 System environment In information technology (IT), a system environment is a platform with which an information technology system is operated.

1.2.18 A test license of the store software is a license for the free use of the software by a customer for test purposes for a limited period of time.

1.2.19 The ticketing system is used to handle the receipt, confirmation, classification and processing of customer inquiries. A ticket is a support request to SmartStore that is linked to an identification number. The ticketing system is intended to ensure that no message is lost and that a complete overview of the processes to be processed is possible at all times. Tickets are processed during support and service hours (SSZ), unless otherwise agreed.

1.2.20 Update and upgrade refers to the updating of the software. The classification of the update as an update or upgrade is at the sole discretion of SmartStore.

1.2.21 Update refers to the updating of software or data, the latter for example as a database update, as an update to a website or a report. An update can also stand for a method in software that updates an object.

1.2.22 Upgrade refers to the significant change of a product to a higher configuration or version and is usually indicated by an increase in the major release number of the program.

1.2.23 URL is the abbreviation for "Uniform Resource Locator", which identifies and localizes a resource, in this case a website, via the access method to be used. In the context of the contractual relationship between SmartStore and the customer, store URL refers to the web address of the domain under which the customer's SmartStore store is or will be accessible. The customer must specify the store URL for each instance. See also section 1.2.7 and section 1.2.13.

1.2.24 Workaround is a detour to avoid a known malfunction of a technical system, in this case the software.

2.1 Inclusion of the GTC upon conclusion of the contract and their scope of application, SmartStore partners

2.1.1

Our offers, in particular in brochures, advertisements and on the Internet, are non-binding and subject to change. SmartStore submits a binding offer at the customer's request. SmartStore AG, Kaiserstr. 63-65, 44135 Dortmund (hereinafter referred to as "SmartStore ") addresses its contractual offers regarding its Smartstore store software, including with regard to its special terms and conditions of the end user license agreements (EULA) and support contracts, exclusively to entrepreneurs as potential contractual partners (hereinafter referred to as"customers" ), taking into account these General Terms and Conditions (hereinafter referred to as "GTC") of SmartStore. Pursuant to Section 14 of the German Civil Code (BGB), an entrepreneur is a natural or legal person or a partnership with legal capacity that, when concluding a legal transaction, is acting in the exercise of its commercial or independent professional activity. The contract including these GTC between the customer and SmartStore is concluded upon acceptance by the customer vis-à-vis SmartStore when the latter receives the contract signed by the customer. The acceptance and the contract thus concluded are binding. A digital signature that is suitable for authenticating the identity of the signatory beyond doubt is equivalent to a handwritten signature. Consumers are excluded from SmartStore's offers.

2.1.2

SmartStore's GTC apply to the exclusion of any deviating terms and conditions of the customer. Any terms and conditions of business of the customer are hereby expressly rejected. Silence or the tacit provision of services by SmartStore in response to any deviating terms and conditions of business of the customer shall not be deemed recognition of or consent to these, even in the case of future contracts.

2.1.3

Unless otherwise agreed, SmartStore's GTC also apply to future contracts relating to the Smartstore store software (i.e. in particular contracts for one-off services such as an initial installation, a basic store software setup, a web server setup, webinars on the store software, basic theming, customizing and a Smartstore backup, as well as agreements on the software provided for use together with the relevant end user license agreement (EULA), the relevant license fees and the relevant agreed support), even if they are not expressly agreed again.

2.1.4

SmartStore has concluded agreements with certain partners ("SmartStore partners") for the marketing and support of certain products and services. SmartStore partners are NOT authorized to represent SmartStore and/or make binding declarations on its behalf. Insofar as a SmartStore partner brokers SmartStore products and services, only the agreements and conditions of the contract concluded between SmartStore and the customer apply in the relationship between the customer and SmartStore. SmartStore is not responsible for the business activities of the SmartStore partner or for any promises that the SmartStore partner makes to the customer or for products and services that the SmartStore partner offers under its own contracts.

2.2 Terms of payment, prices and price changes, service description, economic inability of the customer

2.2.1

All prices and remuneration quoted are in euros net plus the applicable value added tax. The prices at the time of conclusion of the contract shall apply. We reserve the right to adjust prices in accordance with section 2.2.10. Promotional prices for customers are one-off discounted prices. After expiry of the first standard contract term, the regular price shall apply again in the event of an extension and/or conclusion of a new contract. The regular prices can be found in the order form or in the contractual document of the parties, or alternatively in the SmartStore price list valid at the time the contract is concluded. Discounts, rebates or other reductions require a written agreement.

2.2.2

SmartStore is also entitled to issue invoices for individual parts of the contractually owed service (partial invoices).

2.2.3

Advance payment applies to all contracts: SmartStore shall not provide its services until it has received the agreed remuneration. SmartStore is therefore entitled to withhold its services until payment has been received.

2.2.4

The customer must pay all amounts without deduction no later than 14 days after receipt of the invoice; the receipt of the amount in SmartStore's bank account is decisive. The customer shall be in default of payment at the latest if he does not make payment within 14 days of the due date and receipt of the invoice. The same applies if SmartStore issues the customer with a partial invoice for a partial service.

2.2.5

A payment by the customer is only deemed to have been made when the amount has been credited to SmartStore's account and is finally available.

2.2.6

The customer may only offset claims by SmartStore if their counterclaim is undisputed or has been legally established. The customer has no right of retention unless the customer's counterclaim arises from the same contractual relationship and is undisputed, recognized in writing or legally established.

2.2.7

If the customer does not make any payment arrangements, incoming non-earmarked payments by the customer may, at SmartStore's discretion, be offset against due claims and due ancillary claims against the customer, insofar as this is legally permissible. This also applies to outstanding claims from other matters.

2.2.8

Services that are billed on a time basis (e.g. pay-per-incident support) are recorded in SmartStore's ticket system, to which the customer always has access. SmartStore shall provide the customer with evidence of the services to be billed on a time basis and the time spent on them by means of records within the ticket system. The customer must check the service records immediately upon receipt and object within five working days of receipt if they do not agree with an invoice. If the customer does not raise any justified objections within this period, the timesheet shall be deemed accepted.

2.2.9

2.2.10

SmartStore is entitled to adjust the respective prices in accordance with Section 315 of the German Civil Code (BGB) at its reasonable discretion no more than once within four months to the first of the following month in line with changing market conditions, in particular in the event of significant changes in procurement and production costs, changes in VAT, in order to maintain the initially contractually agreed equivalence structure between service and consideration over the entire term of the contract. If some of the cost factors to be taken into account in pricing result in additional charges and some in reduced charges, these will be balanced out. SmartStore shall notify the customer of the change in writing at least 6 weeks before the planned effective date. In the event of a price change, the customer has the right to terminate the contract with effect from the date on which the change is scheduled to take effect. In the notification of the price adjustment, SmartStore will inform the customer of the reason, conditions, scope and time of the price increase and make separate reference to the customer's option to terminate the contract. In the event of termination, the price change will not take effect vis-à-vis the customer. If payment was made on the basis of an ineffective price increase, the customer may reclaim the increase amounts for the past period of one year from the time at which the customer first objects to the price increase. In this case, the relevant price shall be the price at the time one year before the first objection was raised, without taking into account the ineffective price increase objected to.

2.2.11

If there are objectively justified grounds to fear that the customer's ability to meet his payment obligations is seriously jeopardized due to a lack of creditworthiness, in particular if the customer begins to sell his stocks of goods for the purpose of liquidation, if he suspends his payments, if he offers his creditors a moratorium, if proceedings for out-of-court debt settlement pursuant to § 305 I 1 InsO are initiated against the customer's assets or an application for insolvency is filed, SmartStore is entitled to declare all outstanding claims immediately due and payable, unless our contractual partner provides collateral within a reasonable period set by us. In this case, we are also entitled to terminate existing exchange contracts with the customer by rescission and continuing obligations by termination without notice. § Section 321 BGB and Section 112 InsO remain unaffected.

2.3 Protection of intellectual property and copyright

2.3.1

The basic software and plug-ins are protected by international agreements and by laws applicable to SmartStore. SmartStore owns all rights, title and interest in the store software, including all copyrights, patents, trade and business secrets, trademarks and other intellectual property rights.

2.3.2

The basic software created by SmartStore from version 5 onwards is published under the AGPLv3 and can be used in accordance with the latter. The AGPLv3 can be accessed online, cf. section 1.1. SmartStore grants the customer the right to modify the basic software or to create derivative works of it. On its website www.smartstore.com and the page https://github.com/smartstore, SmartStore provides the customer with information and downloads of the basic software for the operation of its own online store. Apart from this, SmartStore is the owner of the exclusive rights of use and exploitation of the Smartstore store software with the various proprietary plug-ins assigned to it. The various editions can be used by the customer in accordance with the EULA agreed between SmartStore and the customer for the edition in question. These GTC apply in addition to the special conditions of the relevant EULAs.

2.3.3

SmartStore reserves all rights to illustrations, drawings, calculations and other documents. This also applies to documents that SmartStore designates as "confidential". Such documents may only be passed on to third parties, distributed and/or published with the express written consent of SmartStore.

2.4 Further development of the store software

2.4.1

SmartStore will further develop the store software in the event of changes to relevant legal regulations and comparable events within the scope of the support agreements.

2.4.2

In order to use the store software, the system requirements published by SmartStore must be met by the customer. Otherwise, error-free use of the store software is not possible. The system requirements for SmartStore can be accessed online (see section 1.2.17). SmartStore may further develop the store software at its own discretion based on its own research, suggestions from the customer or other users with regard to technical innovations, functionality and ergonomics. SmartStore is entitled to change the system requirements within reasonable limits during the term of the contract. This applies in particular if, for example, the technologies of Microsoft or browser providers or other third-party providers change, so that changes are necessary for the correct functioning of SmartStore's store software. However, the customer has no right to make specific changes/additions to the store software, nor can he demand further development of the store software in general.

2.4.3

If SmartStore removes an individual program component from the store software or software maintenance at its reasonable discretion in the course of further developing the software, the customer is not entitled to a replacement. In this case, however, the customer has the right to terminate the contractual relationship extraordinarily with immediate effect. This right to extraordinary termination does not apply if SmartStore replaces the removed program component with an equivalent or higher quality component.

2.4.4

SmartStore is entitled to make changes to the service description or the General Terms and Conditions and other conditions. SmartStore will only make these changes for valid reasons, in particular due to new technical developments, changes in case law or other equivalent reasons. If the amendment significantly disturbs the contractual balance between the parties, the amendment will not be made. Otherwise, changes require the consent of the customer.

2.5 Updates and upgrades of the store software

2.5.1

2.5.2

SmartStore is free to provide updates, hotfixes or service packs in the form of separate data carriers or as downloads.

2.5.3

If SmartStore has published a "service pack" for a specific store software update, only "hotfixes" based on this "service pack" will be created from this point onwards.

2.5.4

SmartStore is entitled to rectify any defect in an update by providing a new update of the store software. Alternatively, SmartStore may provide a hotfix or a service pack for the store software update affected by the defect. The customer is not entitled to one or the other type of rectification.

2.5.5

Before installing a hotfix, a service pack or a new update of the store software, the Customer shall ensure, at its own risk and expense, that its individual customization of the store software is compatible with the hotfix, the service pack or the new update. This also applies in the event that SmartStore has provided such a customization as part of a service contract.

2.5.6

The functional scope of an update, hotfix, service pack or upgrade is specified in detail in the information supplied about the store software.

2.5.7

Unless expressly agreed otherwise, the customer is not entitled to upgrades of the store software. Upgrades are characterized by a higher major version number (major release), generally contain additional functionalities compared to the previous versions and may have changed system requirements. Unless expressly agreed otherwise, upgrades must be purchased new. If SmartStore provides an upgrade as part of the existing contract, the provisions of the EULA and SmartStore's GTC also apply accordingly, as in the case of updates. SmartStore's GTC can be accessed online, see section 2.1.1.

2.6 Marketplace "SCM" for users/customers

2.6.1

SmartStore offers the customer the opportunity to purchase or download additional plug-ins for a fee or free of charge via its electronic platform Marketplace (hereinafter referred to as "SCM").

2.6.2

Insofar as such plug-ins purchased or downloaded via SCM were NOT developed and created by SmartStore itself, SmartStore is NOT a contractual partner of the customer, but merely acts as an intermediary and is authorized by the third-party provider to collect the remuneration on its behalf.

2.6.3

When purchasing or downloading a plug-in via SCM, the current version of the plug-in is the exclusive subject matter of the contract. Subsequent versions of the plug-in purchased or downloaded via SCM are NOT the subject matter of the contract and must be purchased again, unless expressly agreed otherwise.

2.6.4

Further details on sections 2.6.1 to 2.6.3 can be found in the terms and conditions of the SmartStore Community Marketplace (SCM).

2.7 Warranty and liability

2.7.1

UNLESS EXPRESSLY AGREED OTHERWISE IN INDIVIDUAL CASES, SMARTSTORE DOES NOT ASSUME ANY EXPRESS OR IMPLIED WARRANTY FOR THE STORE SOFTWARE. IN PARTICULAR, SMARTSTORE DOES NOT ASSUME ANY WARRANTY FOR A SPECIFIC QUALITY, NOR FOR A SPECIFIC DURATION OF THE EXISTENCE OF A SPECIFIC QUALITY ("DURABILITY"), NOR FOR A SPECIFIC PERFORMANCE CAPABILITY, NOR FOR MARKETABILITY, NOR FOR SUITABILITY FOR A SPECIFIC PURPOSE, NOR FOR THE SUITABILITY FOR A SPECIFIC NEED OF THE CUSTOMER, NOR FOR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, NOR FOR THE INTEGRABILITY OF THE SOFTWARE WITH OTHER PRODUCTS, NOR FOR UNINTERRUPTED AND FAILURE-FREE USABILITY, NOR FOR PROTECTION AGAINST ANY THREATS OF ANY KIND. GUARANTEES EXPRESSLY AGREED IN INDIVIDUAL CASES REQUIRE THE EXPRESS WRITTEN CONFIRMATION OF THE MANAGEMENT BOARD OF SMARTSTORE AG IN ORDER TO BE EFFECTIVE. THE ABOVE PROVISIONS APPLY EQUALLY TO SMARTSTORE PARTNERS AND OTHER AUTHORIZED SALES PARTNERS.

2.7.2

SmartStore has published both the basic software and the plug-ins under the AGPLv3 and may be used in accordance with this license. The AGPLv3 can be accessed online, cf. section 1.1. SmartStore grants the customer the right to modify the basic software and the plug-ins or to create derivative works of them. IN THIS RESPECT, THE BASIC SOFTWARE AND PLUG-INS ARE PROVIDED UNDER EXCLUSION OF WARRANTY AND LIABILITY.

2.7.3

THE BASIC SOFTWARE AND PLUG-INS MAY CONTAIN "OPEN SOURCE" MATERIALS (E.G. SOFTWARE PRODUCTS THAT ARE SUBJECT TO LICENSE MODELS SUCH AS OPEN SOURCE, COPYLEFT, GNU GENERAL PUBLIC LICENSE, LIBRARY GENERAL PUBLIC LICENSE, LESSER GENERAL PUBLIC LICENSE, MOZILLA LICENSE, BERKELEY SOFTWARE DISTRIBUTION LICENSE, OPEN SOURCE INITIATIVE LICENSE, MIT LICENSE, APACHE, PUBLIC DOMAIN LICENSES OR SIMILAR TYPES OF LICENSE MODELS). SMARTSTORE AG MAKES NO GUARANTEES, WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE OPEN SOURCE MATERIALS CONTAINED IN THE SOFTWARE.

2.7.4

THIRD-PARTY COMPONENTS FROM THIRD-PARTY MANUFACTURERS LABELED AS SUCH, SUCH AS MICROSOFT AS THE MANUFACTURER OF THE DATABASES USED, EVEN IF THEY HAVE BEEN DELIVERED TOGETHER WITH SMARTSTORE PRODUCTS, ARE NOT THE SUBJECT OF THE CONTRACTUAL RELATIONSHIP CONCLUDED BETWEEN SMARTSTORE AG AND THE CUSTOMER. SMARTSTORE AG ALSO ASSUMES NO GUARANTEE, WARRANTY OR LIABILITY FOR THESE THIRD-PARTY COMPONENTS.

2.7.5

ABOVE PARA. 2.7.3 AND 2.7.4 DO NOT APPLY IF SMARTSTORE AG IS IN CULPABLE BREACH OF DUTY WITH REGARD TO OPEN SOURCE MATERIALS OR THIRD-PARTY COMPONENTS.

2.7.6

IF THE VERSION OF THE BASIC SOFTWARE AND PLUG-INS THAT THE CUSTOMER ACCESSES OR/AND USES - IN PARTICULAR ON GITHUB HTTPS://GITHUB.COM/SMARTSTORE - IS A PRE-RELEASE OR BETA VERSION AND THE CUSTOMER HAS AGREED TO RECEIVE A PRE-RELEASE OR BETA SOFTWARE, THE CUSTOMER ACKNOWLEDGES THAT THIS IS NOT A FINAL PRODUCT OF SMARTSTORE, BUT IS STILL IN THE DEVELOPMENT STAGE. a pre-release or beta version is not yet fully tested and may be subject to many, including serious, system errors and malfunctions and other problems that could result in computer system failure and loss of data. ANY PRE-RELEASE OR BETA SOFTWARE IS PROVIDED "AS IS" AND UNFINISHED AT THE DEVELOPMENT STAGE. SMARTSTORE AG DISCLAIMS ALL WARRANTY AND LIABILITY CLAIMS OF ANY KIND FOR PRE-RELEASE OR BETA SOFTWARE. the customer therefore uses a pre-release or beta version in any case exclusively at his own risk.

2.7.7

SMARTSTORE AG IS NOT A CONTRACTUAL PARTNER WITH REGARD TO A PLUG-IN PURCHASED OR DOWNLOADED ON THE PLATFORM SCM THAT WAS NOT DEVELOPED AND CREATED BY SMARTSTORE AG ITSELF (CF. section 2.6.2) and the customer has any claims exclusively against the plug-in provider/service provider. SMARTSTORE AG ALSO ASSUMES NO GUARANTEE, WARRANTY OR LIABILITY FOR THESE THIRD-PARTY PLUG-INS. FIG. 2.7.3 TO 2.7.5 APPLY ACCORDINGLY.

2.7.8

THE SMARTSTORE STORE SOFTWARE IS NOT DESIGNED, PROVIDED OR INTENDED FOR USE IN HIGH-RISK AREAS. IN PARTICULAR, THIS EXCLUDES USE FOR THE OPERATION OF NUCLEAR POWER FACILITIES, AIR TRAFFIC NAVIGATION AND COMMUNICATION FACILITIES, DIRECT LIFE SUPPORT SYSTEMS OR WEAPONS SYSTEMS AND IN SAFETY-CRITICAL AREAS WHERE THE FAILURE OF THE STORE SOFTWARE COULD LEAD DIRECTLY OR INDIRECTLY TO DEATH OR INJURY TO PEOPLE OR TO SERIOUS ENVIRONMENTAL OR OTHER PHYSICAL DAMAGE. THE CUSTOMER IS PROHIBITED FROM USING STORE SOFTWARE IN THESE HIGH-RISK AREAS.

2.7.9

THE CUSTOMER'S CLAIMS FOR DEFECTS EXPIRE ONE YEAR AFTER THE STORE SOFTWARE HAS BEEN PROVIDED.

2.7.10

Unless otherwise contractually agreed, SmartStore's warranty and liability are governed by the statutory provisions.

2.8 Obligations of the customer to cooperate

2.8.1

The customer must ascertain the suitability of SmartStore's store software for their specific purposes on the basis of the information provided by SmartStore. In this respect, the customer assumes responsibility for selecting the store software with which they wish to achieve the desired results.

2.8.2

The customer must create the necessary hardware and software environment for the use of the store software. The system requirements necessary for the operation of the Smartstore store software can be accessed online, cf. section 1.2.17. If new program versions require the customer to adapt their hardware or operating system, this must be done by the customer themselves before the updates or upgrades are installed. Cf. a. Section 2.4.2.

2.8.3

The customer is obliged to carry out regular data backups or have them carried out so that lost data or programs can be restored at a reasonable cost. Before the installation of an update or upgrade, service pack or hotfix or the installation of other software, the customer must in any case carry out such a data backup or have it carried out.

2.8.4

If an error occurs, the customer is obliged to support SmartStore in troubleshooting and to provide SmartStore with the information required for troubleshooting.

2.8.5

The customer must observe SmartStore's operating instructions, in particular in the documentation for its store software. The Customer shall be solely responsible for the proper use of the software and the results achieved when using the store software.

2.9 Individual programming/project work

2.9.1

In principle, SmartStore offers the customer the option of making individual adjustments to the store software and creating customized plug-ins for an appropriate fee. A separate contractual agreement "SmartStore Project Work GTC" is required for this, particularly in the case of special project work.

2.9.2

Unless expressly agreed otherwise in the individual contract, the customer and SmartStore agree that such individual programming and/or project work shall be compatible and functional with the current version of the store software upon completion and transfer. UNLESS EXPRESSLY AGREED OTHERWISE IN INDIVIDUAL CASES, SMARTSTORE AG DOES NOTASSUME ANYEXPRESS OR IMPLIED WARRANTY FOR SUCH INDIVIDUAL PROGRAMMING AND/OR PROJECT WORK, IN PARTICULAR NOT FOR A CERTAIN DURATION OF THE EXISTENCE OF A CERTAIN QUALITY ("DURABILITY"). Cf. a. Section 2.7.2. the customer therefore has no claim to the effect that the individual adaptations and/or individual programming and/or project work will continue to function or be applicable for him without errors even after an update or upgrade to a new release of the store software.

2.9.3

The customer may, however, commission SmartStore to transfer individual adaptations and/or individual programming and/or project work to the new release and adapt it to the new release in return for appropriate remuneration. A separate contractual agreement is required for this.

2.10 Deadlines and time limits, provision of services

2.10.1

Agreements on deadlines and dates are only binding if they are made in writing or confirmed by SmartStore.

2.10.2

If changes or additions are ordered by the customer, deadlines and/or time limits previously agreed in writing shall lose their validity, unless the changes or additions requested by the customer are clearly irrelevant for compliance with the agreed deadline and/or time limit.

2.10.3

SUBJECT TO LIABILITY ON OTHER GROUNDS, SMARTSTORE AG SHALL NOT BE LIABLE FOR DAMAGES DUE TO DELAY IN THE EVENT OF ONLY SLIGHT NEGLIGENCE. SUBJECT TO LIABILITY ON OTHER GROUNDS, SMARTSTORE AG IS ALSO NOT LIABLE IF THE DAMAGE CAUSED BY DELAY WOULD HAVE OCCURRED EVEN IF PERFORMANCE HAD BEEN RENDERED ON TIME.

2.10.4

Insofar as SmartStore is unable to meet deadlines or deadlines as a result of force majeure or other unforeseeable, uncontrollable and exceptional circumstances, or is unable to meet them on time or on schedule, SmartStore shall not suffer any detrimental legal consequences. If the aforementioned impediments to performance lead to a delay in performance of more than six months, both contracting parties may demand termination of the contract. Insofar as agreed services have not yet been rendered in this case, any consideration already provided must be reimbursed immediately. Any other rights of withdrawal shall remain unaffected.

2.10.5

SmartStore shall not be in default as long as deadlines or time limits cannot be met due to inadequate conditions in the customer's application environment (hardware or software) or other lack of cooperation on the part of the customer.

2.10.6

If the customer is in default vis-à-vis SmartStore with its obligations from this or previous transactions, the performance deadlines shall be extended by the period in which the customer is in default.

2.10.7

SmartStore is entitled to provide partial services to an extent that is reasonable for the customer. These shall be deemed partial performance.

2.10.8

Insofar as SmartStore is required to provide the customer with software, it may, at its own discretion, make this available by delivering an electronic data carrier on which the store software is stored in object code, or by sending it by email or by referring the customer to a download option via the Internet.

2.10.9

SmartStore is entitled to fulfill its services by engaging third parties.

2.11 Confidentiality agreement

2.11.1
SmartStore and the customer, as contracting parties, shall maintain confidentiality regarding all confidential processes, business and trade secrets of which they become aware in the course of performing their contractual obligations, even after the end of the contract, and shall not disclose or otherwise utilize these except for the performance of their contractual obligations without the consent of the other party. This applies in particular to information and documents designated as confidential by SmartStore.

2.11.2
The contracting parties shall also impose these obligations on their employees and any third parties engaged.

2.11.3
The obligation of confidentiality and secrecy shall expire if and to the extent that the knowledge contained in the documents or information provided has become generally known.

2.12 Storage and processing of data

2.12.1
SmartStore processes personal data in accordance with the information sheet "Notes on the processing of personal data by SmartStore AG" and, if separately agreed between the customer and SmartStore, in accordance with a contract for commissioned data processing. With regard to the SmartStore website, reference is also made to the privacy policy for the website, which can be accessed online at https://smartstore.com/de/datenschutz.

2.13 Copyright and trademark law

All brand names and trademarks mentioned on the SmartStore website that may be protected by third parties are subject without restriction to the provisions of the applicable trademark law and the rights of the respective registered rights holders. The mere mention of a trademark does not imply that it is not protected by third-party rights. The copyright for published objects created by the author himself remains solely with the author of the pages. Reproduction or use of such graphics and texts in other electronic or printed publications is not permitted without the express permission of SmartStore.

2.14 Customer references

Insofar as the customer agrees to serve as a customer reference for SmartStore, the references may be presented in all customary forms, both digital (e.g. on websites, in emails and videos) and non-digital (e.g. in letters, brochures, on posters and at trade fair stands), including for marketing purposes, and may be mentioned verbally, unless expressly agreed otherwise. The examples given are not to be understood as exhaustive. The presentation of references may include the customer's company, its logo and other publicly known information such as industry.

2.15 Assignment

The transfer of the customer's rights and/or assignment of the customer's claims against SmartStore arising from the contractual relationship is only permitted with the prior consent of SmartStore.

2.16 Written form

Amendments and additions to these GTC must be made in writing. This also applies to any amendment or revocation of this written form requirement itself. The use of email or other electronic means of communication does NOT fulfill the written form requirement.

2.17 Contract language

The contract language is German. If contractual documents are also available in a non-German language, only the German version - if available - shall be authoritative for the legal relationship between the parties.

2.18 Cross-border deliveries and services

The customer shall observe the import and export laws applicable to the deliveries and services on its own responsibility, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges incurred. The customer shall handle legal or official procedures in connection with cross-border deliveries and services on its own responsibility, unless expressly agreed otherwise.

2.19 Place of performance, applicable law, place of jurisdiction

2.19.1

The place of performance for all services provided by SmartStore under this contract is its registered office in Dortmund, unless performance must take place at a different location due to the nature of the matter.

2.19.2

To the exclusion of foreign law, the law applicable to legal relationships between domestic parties at the registered office of SmartStore (German law) shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

2.19.3

The place of jurisdiction for all disputes arising from this contract is determined by the registered office of SmartStore. The same applies if the customer does not have a general place of jurisdiction in Germany or if their place of residence or habitual abode is unknown at the time the action is brought. This does not affect SmartStore's right to appeal to the court at another legal place of jurisdiction.

2.20 Gender-neutral wording

For reasons of better readability, the simultaneous use of gender-specific language forms is dispensed with in all SmartStore documents. Notwithstanding this, all personal designations naturally apply equally to all genders.

2.21 Severability clause

If individual provisions of this contract are or become invalid, this shall not affect the validity of the remainder of the contract, unless adherence to the contract would cause unreasonable hardship for one of the parties. If individual provisions of this contract are or become invalid for other reasons pursuant to §§ 305 - 310 BGB, the invalid provision shall be replaced by the contracting parties with a valid provision that comes as close as possible to the legally and economically intended provision in a legally permissible manner and ensures the feasibility of the contract in the sense intended by both parties. The same applies if the contracting parties have unintentionally failed to agree on a point that requires supplementation (contractual loophole) and there is no provision to this effect in the law. The parties are then obliged to supplement the contract in the aforementioned sense.

v1.8 - 19.11.2023