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Terms and Conditions

Last Updates: 2021-06-02

1. Scope of application

These General Terms and Conditions of Business (referred to hereinafter as “GTC”) of shopware AG, Ebbinghoff 10, 48624 Schöppingen, Germany (referred to hereinafter as “Shopware”) apply exclusively. Additional or deviating terms and conditions shall not apply unless Shopware has explicitly acknowledged them in text from (“Textform” according to § 126b BGB (German Civil Code)); this shall also include the case that Shopware, even though being aware of additional or deviating terms and conditions of the customer, delivers goods or provides services to the customer without reservation. 
In the relationship with the customer, only the German versions of these GTC and the contract, if any, concluded with the customer are binding. Any translations to other languages shall be for convenience purposes only (“convenience version”). This shall also apply with respect to landing pages which Shopware makes available on the Internet in languages other than German.
All offers made by Shopware are exclusively addressed to business persons, public law entities and special funds under public law (“öffentlich-rechtliche Sondervermögen”) within the meaning of § 310 subs. 1 BGB (German Civil Code) (“referred to hereinafter as “customer(s)”). Consumers are explicitly excluded from the Shopware offers.

2. Provision of the “Shopware” shop software

Shopware is the producer of the “Shopware” shop software, which Shopware offers to the customer for running its own online shop (referred to hereinafter as “Shopsoftware”); Shopware makes information and downloads for the different Shopsoftware editions available to the customer on Shopware’s website. 
Any customer who wants to use the Shopsoftware must ensure that the system requirements published by Shopware in the documentation available at https://docs.shopware.com/en are fulfilled. Otherwise, the customer cannot use the Shopsoftware at all or use it with errors only.
Shopware provides the Shopsoftware with the features, functionalities and interfaces which are described upon contract conclusion with the customer on the website, in a Shopware store, in the Shopsoftware, in the performance specification or in these GTC. The customer shall not be entitled to claim any other special design or features of the Shopsoftware. Shopware shall only be deemed to have given an express warranty of certain qualities of the Shopsoftware if Shopware has explicitly designated these qualities as “warranted qualities” (“zugesicherte Eigenschaften”) in an appropriate confirmation to the customer in text form (“Textform”).
Shopware is entitled to offer the Shopsoftware as free software, proprietary software or Shopware as a Service. In addition, Shopware offers software extensions for the Shopsoftware. These are subject to the terms and conditions laid down in these GTC. The customer shall in no case use the Shopsoftware to directly or indirectly develop, or cause third parties to develop, or enhance, or cause third parties to enhance, a similar service or product.
If software is left to the customer for demonstration and test purposes, the software remains the property of Shopware and the customer is only granted a simple, non-exclusive right to use the software for the agreed test or demonstration period but no longer than four weeks from delivery. It is forbidden to bypass any technical devices or precautions to protect the software.
 

2.1. Free Software (Community Edition)

2.1.1. Performance specification

The Community Edition of the Shopsoftware is provided to the customer by donation free of charge. For the Community Edition, Shopware offers no support services other than those described in sec. 9.1 and 9.2.
 

2.1.2. License conditions and conditions of use

For the versions Shopware 6 and higher, the license conditions for the Community Edition of the Shopsoftware which must be observed by the customer are laid down in the MIT license. The MIT license conditions are available at https://opensource.org/licenses/MIT. For the versions up to (and including) Shopware 5, the Community Edition of the Shopsoftware is subject to the AGPLv3 license conditions and the MIT license conditions as far as the standard theme of the Shopsoftware is concerned. These conditions must be observed by the customer. The AGPLv3 license conditions are available at www.gnu.org/licenses/agpl-3.0.de.html.
Shopware grants the customer the right to use the Shopsoftware to the extent defined by the license itself and, in addition, within the limits of the conditions of use laid down in these GTC. The license conditions for the Community Edition shall in no case be limited, restricted or modified by these GTC. The rights acquired in any separately purchased software extensions (sec. 2.2) according to the license conditions of the respective extension are not limited or restricted thereby. The customer is not granted any further rights.

2.1.3. Naming as a reference client

The customer, when using the Community Edition, allows Shopware to name the customer as a reference client and use the customer’s word marks and figurative marks for advertising purposes.

2.1.4. Warranty claims and liability

The following applies for customers in Germany in addition to sections 15 to 17 of the AGPLv3 license and the MIT license: The provision of the Community Edition is free of charge; sections 17 and 18 shall apply.
Any use of the Community Edition contrary to these license conditions and conditions of use causes forfeiture and immediate termination of the right to use the Shopsoftware.
 

2.2. Proprietary Software

Shopware also offers various proprietary editions of the Shopsoftware as paid software. The information made available for these editions on the website does not constitute a binding offer for contract conclusion.
The customer may at any time complete the contact form to request Shopware to submit an offer without engagement for the conclusion of a contract for use of the proprietary Shopsoftware; the customer request is free of charge and non-binding. The customer will then receive an offer without engagement in text form (“Textform”) for the requested Shopsoftware edition. Alternatively, the Shopsoftware may also be purchased in Shopware stores (sec. 6). If the customer request qualifies as an offer for contract conclusion according to § 145 BGB (German Civil Code), Shopware may accept the offer within a period of two weeks.
The software extensions for the Shopsoftware are offered by Shopware exclusively as proprietary paid software. They are only available as parts of an edition. A list of these extensions is available at https://store.shopware.com/en/extensions/developed-by-shopware/shopware-5-premium-plugins/. The customer can purchase the proprietary software. The purchase of proprietary software automatically involves the conclusion of a fixed-term service agreement. The cost of the service agreement for the minimum contract term is included in the purchase price. Thereafter, the service agreement will be automatically extended according to the provisions of sec. 8.3. Alternatively, the customer can rent the proprietary software, subject to one moth’s notice of termination. The rent includes the service as well as updates. No separate service agreement is required in this case. The services and updates are subject to the terms and conditions set out in sec. 9.3.
 

2.2.1. Performance specification

The performance specification for the proprietary editions offered by Shopware is available on the website at https://www.shopware.com/en/pricing/.

2.2.2. Conditions of Use

The Shopsoftware and the standard theme of the proprietary editions of the Shopsoftware are subject to the license conditions and conditions of use under sec. 2.1.2.
The software extensions referred to in sec. 2.2 are copyrighted. Shopware grants the customer a simple, non-exclusive, non-transferable right, which, except as agreed otherwise, is limited to the territory of Europe, temporally unlimited or – in the case of software rental – limited to the contract term, to use the software extensions together with the Shopsoftware in accordance with the following provisions.
The rights under a single contract are granted only for the use on one server for the online shop. If the customer intends to use the software on more than one server (e.g. for shared hosting to share the load by means of a load balancer), a Shopware Enterprise Edition will be required (sec. 2.4). Any use for an additional online shop always requires an additional contract and the additional grant by Shopware of the rights to use the software.  
The customer may only use the versions of the software extensions used by the customer and referred to in sec. 2.2, or certain parts thereof, for the customer’s own company and business activities. Any use in affiliated companies within the meaning of §§ 15 et seq. AktG (German Stock Corporation Act) or in companies in which the customer otherwise holds a direct or indirect participation requires separate consent by Shopware in text form (“Textform”). The use of the software extensions is limited to the customer’s main domain through which most of the customer’s business activities are carried out.
The customer may copy or reproduce the software extensions referred to in sec. 2.2 if and to the extent this is required for the use intended under the contract. This includes, without limitation, installation of the software extensions on the server as well as back-up copies. However, as a rule, the customer is allowed to make and retain only one single back-up copy which must be marked “back-up copy”. Further copying including printing of the program code is forbidden.
The customer is obliged to implement appropriate precautions to prevent unauthorized third-party access to the software extensions referred to in sec. 2.2 and the documentation. The original files and back-up copies must be kept in a safe place which is protected against unauthorized access. The employees of the customer must be urgently advised of the requirement of compliance with these conditions of use and of Shopware’s copyright.
The statutory rights of the customer under §§ 69d, 69e UrhG (Germany Copyright Act) remain unaffected.

2.3. Third-party open-source software

The Shopsoftware contains open-source software from third parties (referred to hereinafter as “OSS”). Notwithstanding the provisions in these GTC, the customer is only granted those rights to use the OSS which are specified in the license conditions for the OSS. Shopware shall inform the customer upon request which OSS is contained in the Shopsoftware or the software extensions and which license conditions apply in this regard if and to the extent this cannot be seen from the documentation concerning the Shopsoftware.

2.4 Shopware Enterprise Edition

The use of the Shopware Enterprise Edition requires a separate license agreement. The conditions of use of the Shopware Enterprise Edition are laid down in the said agreement. The present GTC shall apply in addition. 
 

3. Patches and Updates

Patches are modifications of the Shopsoftware which are intended to solve a specific problem. Updates are changes to the Shopsoftware which extend the software functionalities. Updates usually include patches. Patches and updates may also help adjust the software to changed legal requirements; however, unless otherwise agreed between the parties in text form (“Textform”), the customer shall not be entitled to claim the provision of patches and/or updates.

3.1. Provision of patches and updates

Shopware provides the customer with patches and updates by keeping them available on a server which can be accessed via the Internet. The customer shall keep itself informed about available patches and updates.
Shopware is not liable under the contract to install patches or updates or render support or advice. The customer may however purchase such services from Shopware by separate agreement.
Shopware will make patches and updates available to the customer if these have been tested by Shopware and are ready for use. The customer is not entitled to claim patches or updates to be provided by certain deadlines or within certain periods. The provision of new generations of the Shopsoftware (e.g. Shopware 6 following Shopware 5) is not included in the provision of patches and updates unless otherwise agreed in the contract with the customer or in these GTC by way of exception.

3.2. Effects of patches and updates

Shopware will use its best endeavors to provide the customer with patches intended to eliminate severe bugs on the Shopsoftware or software extensions. Unless otherwise agreed in text form (“Textform”), Shopware does not warrant specific response or recovery times.
The customer acknowledges that patches and updates of Shopware can only be tested for standard installations. It is in particular impossible to test side effects which are caused by modifications of software extensions or manual alterations of the configuration files which were implemented past the mechanisms provided by Shopware. Shopware explicitly excludes any warranty that a certain patch or update leaves the functionality of the Shopsoftware or the software extensions unchanged under any circumstances.
Statutory warranty claims of the customer or claims based on express warranties or product guarantees remain unaffected.

3.3 Rights to use patches and updates

With the installation of patches and updates, the customer is given the same rights to use the patches and updates as are granted with respect to the Shopsoftware or software extensions for which the patch or update is installed.
 

4. Shopware Account

The customer is given the possibility to administer through the Shopware account all software extensions relating to the Shopsoftware as well as its customer data (order management, change of address and payment mode, account balance check, invoice download etc.) and to obtain support services by Shopware according to sec. 9.
With the creation of the Shopware account, customer accepts these GTC by giving its consent during the registration process.

4.1. Customer registration

Use of the Shopware account necessarily requires registration of the customer. Shopware is entitled to refuse the registration of a customer without disclosing the reasons for the refusal.
By registering for the Shopware account, the customer affirms to be a businessperson or legal entity under public law or a special fund under public law (“öffentlich-rechtliches Sondervermögen”) within the meaning of § 310 subs. 1 BGB (German Civil Code).
The customer undertakes to enter complete and correct data required for the registration. Registration in the name of a third party is not permitted. Shopware is entitled to block the customer’s Shopware account if the data prove to be incomplete or incorrect and the customer fails to correct or update the data without undue delay (“unverzüglich”) upon Shopware’s request. This shall not apply if the incorrectness of the data is not attributable to the customer (“nicht zu vertreten haben”).

4.2. Access to the Shopware account

The customer is granted password-protected access to the Shopware account through the Internet. The customer itself chooses the password which must be individual, sufficiently long (at least twelve characters) and complex (upper case letters, lower case letters, numbers, special characters).
The customer is obliged to keep the access data secret and protect them from misuse by third parties. The customer shall notify Shopware without undue delay (“unverzüglich”) of any actual or suspected loss or misuse of access data. Shopware shall then be entitled to suspend and block access until the danger of misuse has been eliminated.
The customer shall be liable for all consequences resulting from the misuse unless the misuse is not attributable to the customer (“nicht zu vertreten haben“).
 

5. Shopware stores for software providers

Shopware gives the customer the possibility to offer software extensions developed by customer (including themes) for the Community Edition and proprietary edition of the Shopsoftware (referred to hereinafter as “On-Prem Shopsoftware”) for sale, rent or free download on electronic sales platforms (referred to hereinafter as “Shopware stores”). Any customer acting in this capacity is hereinafter referred to as “software provider”. Use of the Shopware stores necessarily requires a Shopware account according to sec. 4.
In the case of software extensions containing backend components for the Shopsoftware which are intended for distribution under a proprietary license for Shopware 5, the software provider must necessarily acquire a separate paid Shopware SDK license beforehand.
All further conditions for the use of the Shopware stores by the software provider are laid down in a separate agreement. After this agreement has been concluded in text form (“Textform”), the software provider will be admitted and activated for the provision of software extensions.
 

6. Shopware stores for users

Shopware gives the customer the possibility to purchase, rent or use for free through the Shopware stores software extensions for the On-Prem Shopsoftware which were not developed and created by Shopware itself.
Any customer acting in this capacity is hereinafter referred to as “user”. A purchased software extension may include a subscription which entitles the user to receive patches, updates and support for the software extension according to the subscription conditions.
Use of the Shopware stores necessarily requires a Shopware account according to sec. 4.
Shopware makes the Shopware stores available to the user on the conditions set out hereinafter.

6.1. Contract on software extensions

The contract for the purchase or rental of software extensions in a Shopware store, which may from time to time include a subscription, is entered into between Shopware and the user.

6.2 Rent of software extensions

Some software extensions are also offered for rent instead of purchase. A rental agreement for software extensions is concluded in a Shopware Store with the installation of the software extensions. The rental agreement is entered into for an indefinite period but at least for one month of use which runs from the first day of use. It may be terminated at any time, effective as of the end of the current month of use. Any incomplete month of use will be charged in full. Rental fees already paid or accrued for the current month of use will not be credited. The right to terminate the agreement for cause (“außerordentliche Kündigung aus wichtigem Grund”) remains unaffected. Cause for termination by Shopware shall include, without limitation, any serious willful or negligent breach by the customer of the conditions of use of the software extension agreed in the Shopware Store or of any proprietary rights of the respective right holder.
If the software extension is not uninstalled and deleted after the expiry of the contract term (see sec. 6.4) but still used by the customer for a period of at least two weeks, the rental agreement shall be deemed extended for an indefinite period. However, Shopware’s right to terminate the agreement remains unaffected thereby.

6.3. Obligations of shopware for software enhancements

Software extensions for the On-Prem Shopsoftware are installed and commissioned by the user. The user shall only be entitled to updates if the user has rented the software extensions or purchased a subscription. Support, if offered, will be rendered exclusively by the software provider but in no case by Shopware.
Shopware is not obliged to test and check the software extensions offered in the Shopware stores for functionality, compliance with the qualities described in the offer or for potential infringement of third-party rights. The user is responsible for clarifying any compatibility issues directly with the software provider prior to the purchase.
Software extensions are made available together with an appropriate installation instruction. Instructions for use (user documentation in text form or online help feature) shall only be provided if the software extension cannot be used as intended without such instructions. There is no obligation to provide any other instructions or documentations.
If Shopware itself is the software provider, support and updates for the software extensions will be provided under a separate service agreement according to sec. 9.3. This service agreement also includes the right to receive patches and updates for software extensions made available together with proprietary editions of the Shopsoftware (referred to hereinafter as “Advanced Features”). Therefore, users of the Community Edition cannot receive support, patches or updates from Shopware for software extensions which must be paid for in the Shopware stores. 
The user’s statutory warranty claims or claims under an express warranty or product guarantee remain unaffected.

6.4 Use of software extensions for demonstration and test purposes

If software extensions for the On-Prem Shopsoftware are made available for demonstration and test purposes, the contract for purchase or rental of the software extension will be concluded as described in sec. 6.1 and sec. 6.2 respectively. The first month of use is in any case considered as a demonstration and test period within which the customer may at any time withdraw from the contract (in the case of purchase) or terminate the contract (in the case of rental) without observing a notice period. In this case, no costs will be incurred for the use during the demonstration and test period.
If the customer does not want to continue the use of the software extension after expiry of the demonstration and test period or if the customer wants to terminate the rental (see sec. 6.2), the customer shall be obliged to either completely uninstall the software extension and delete it together with the documentation and all existing copies or return it to Shopware. At Shopware’s request, the customer shall confirm the complete uninstallation and deletion in text form (“Textform”).
 

7. License audits for Shopsoftware and software extensions

Shopware integrates features in the Shopsoftware and, where applicable, in the software extensions which can be used to check the user’s authorization to use the Shopsoftware and software extensions.
For such purpose, information about how the customer uses the Shopsoftware and the software extensions as well as information about the domain(s) used by the customer for such purpose is transmitted to Shopware and compared to the data stored by Shopware. If Shopware becomes aware that the Shopsoftware or a software extension is being used in a way other than that registered with Shopware, Shopware shall be entitled to (a) deactivate the use of the Shopsoftware or software extension by remote access until the case is clarified and, where applicable, a proper license is acquired, and (b) also disclose the information to the producer of the relevant software extension.
Notwithstanding the foregoing, the following shall apply with regard to software extension updates and Advanced Features: If updates are used without an appropriate subscription (in the case of software extensions) or a service agreement (in the case of Advanced Features), a subscription (in the case of software extensions) or a service agreement (in the case of Advanced Features) shall be deemed concluded with the installation of the update by the user.
 

8. Shopware as a Service 

If requested, Shopware makes the Shopsoftware available to the customer as a Shopware-hosted solution in the cloud (referred to hereinafter as “Shopware as a Service“ or “SaaS“). Use of SaaS necessarily requires a Shopware account according to sec. 4. The following conditions of use shall take precedence over any other provisions governing the use of SaaS.

8.1. Performance specification

Shopware makes SaaS available to the customer with the features, functionalities and service levels described in the performance specification and the appropriate documentation in the form of different plans. The different plans are available at any time for inspection at https://www.shopware.com/en/plans/. The user can change from one plan to another every month.
Shopware seeks to keep SaaS permanently available (24 hours a day, 365 days a year). The infrastructure is designed for 99% availability per year except for necessary scheduled routine maintenance and repair measures (not exceeding eight hours per month in total). If possible, necessary maintenance and repair measures will be announced at https://status.shopware.store in good time. Shopware is however not liable to ensure permanent availability of SaaS.
With SaaS, Shopware banks on the principle of “self-service” to render the use of SaaS as easy as possible. For such purpose, additional support services described in the performance specification are made available to assist the customer. The scope of support depends on the plan chosen from time to time; this may also include individual support.
Apart from that, the customer shall not be entitled to claim a special SaaS design or special SaaS features. Shopware shall only be deemed to have given an express warranty of certain qualities of SaaS if Shopware has explicitly designated these qualities as “warranted qualities” (“zugesicherte Eigenschaften”) in an appropriate confirmation to the customer in text form (“Textform”).

8.2. Use of SaaS

SaaS may include the interaction with cloud solutions or third-party applications (referred to hereinafter as “third-party products”). It is the responsibility of the customer to create the prerequisites and conditions required for using third-party products together with SaaS. This includes, without limitation, the conclusion of contracts with the providers of the third-party products as well as the use or installation of the third-party products according to the contract concluded with the relevant provider. Shopware is not a party to these contracts and thus is not responsible for proper performance by the providers of the third-party products.
Access to SaaS is made through the Internet. The customer is responsible for ensuring the Internet connection and the availability of common hardware (e.g. router, smart devices) or software (e.g. browser) which may be required to access SaaS. SaaS is provided to the customer as a solution which can only be used in the browser or controlled via APIs.

8.3. Trial Phase for Shopware as a Service

Shopware makes SaaS available to the customer as a trial version until the customer decides which plan to choose. During the trial phase, the customer can test the features, functionalities and qualities of SaaS which Shopware may in its reasonable discretion activate for trial purposes, but the customer cannot productively use the online shop. The customer may also test features, functionalities and qualities which are not included in all plans or are not available for free use after expiry of the trial phase. Productive use of SaaS is only possible after a plan has been booked. Shopware is entitled to terminate the trial phase and delete the shop after one month of customer’s inactivity.

8.4. Changes to Shopware as a Service

Shopware explicitly reserves the right to change or discontinue SaaS in whole or in part at any time in its reasonable discretion but in consideration of the customer’s interests. This shall however only apply if the discontinuation or change does not affect any performance or services related to obligations of the parties the fulfilment of which is indispensable for the use of SaaS and on the compliance with which the other party usually relies or is reasonable allowed to rely (referred to hereinafter as “essential contractual duty” – “wesentliche Vertragspflicht”). Shopware shall notify the customer in good time of any forthcoming changes in text form (“Textform”).

8.5. Extensions for Shopware as a Service

Shopware makes various software extensions (including themes) for SaaS available to the customer. Shopware provides the software extensions with the system prerequisites, features, functionalities and interfaces which are described upon contract conclusion with the customer in the Shopsoftware, in a Shopware store, in the performance specification or in these GTC.
If the customer changes from SaaS to the Community Edition or a proprietary edition of the Shopsoftware, the customer shall be entitled to continue the use of the existing software extensions. This may from time to time require a separate installation to be carried out by the customer. Conversely, it is not possible to use any existing software extensions for SaaS if they are explicitly designated as exclusively compatible with the On-Prem Shopsoftware.
In default of a separate subscription, Shopware shall not be obliged to provide support for software extensions. The user shall not be entitled to claim software extensions to be provided by certain deadlines or within certain periods.
If the customer itself develops, or engages third parties to develop, SaaS software extensions of its own, the customer shall be responsible for their functionality and for any errors or failures of SaaA which may be caused thereby. This shall not apply if the errors or failures are exclusively or predominantly attributable to Shopware (“zu vertreten haben”).

8.6. Terms of Use for Shopware as a Service

The user is granted a territorially unlimited right, limited to the contract term and, in terms of scope and purpose, limited to the use of the services provided by SaaS from time to time, to use SaaS for its own business purposes within the limits of intended use. As to the rights to use software extensions, sec. 2.2.2 shall apply.

8.7. Customer’s duties in the case of Shopware as a Service

The customer must comply with the applicable law, observe third-party rights and implement appropriate measures to prevent the loss of the customer’s contents stored in SaaS. The customer shall not use any non-documented configuration options in SaaS which are nonetheless accessible to the customer. The customer is responsible for compliance with the applicable statutory provisions with respect to the contents which the user posts in SaaS.
If the customer fails to fulfil its duties despite an appropriate request by Shopware and grant of a reasonable grace period for remedy, Shopware shall be entitled to terminate the contract for cause (“außerordentliche Kündigung aus wichtigem Grund”). Any further rights and claims of Shopware remain unaffected.

8.8. Liability for contents and links

Shopware provides SaaS as a mere technical and organizational platform for the contents posted in SaaS by the customer. These contents are foreign third-party contents for Shopware. If Shopware in exceptional cases provides contents of its own through SaaS, these will be explicitly designated as Shopware contents.
Third-party content is only stored by Shopware and, where appropriate, undergoes automated processing in the context of the services available in SaaS. Shopware is not privy to the third-party contents. Shopware does not carry out any selection or other control of the third-party contents nor does Shopware supervise the SaaS customer or give instructions to the customer. Shopware, by providing SaaS as a platform, does not adopt any third-party contents as its own. The responsibility for the third-party contents lies exclusively with the customer.
Links or functionalities in SaaS may enable access to, or integration of, websites or third-party products which are not operated by Shopware. These links and functionalities are clearly marked and can be identified by a change in the browser address bar or a change of the user surface. Shopware is not responsible for these website and third-party products; sec. 17 remains unaffected

8.9. Fees payable for Shopware as a Service

The fees payable for SaaS are stated in the respective current price list. The basic fees are charged on a monthly prepayment basis. In order to calculate the turnover-based fees payable by the customer, Shopware is entitled to determine, and process for invoicing purposes, the usage volume once a day which is decisive for commission calculation. The turnover-based fees are charged subsequently on a monthly basis.

8.10. Term and termination of Shopware as a Service

The contract takes effect upon the customer ordering the provision of SaaS and runs for an indefinite period. It can be terminated at any time, effective as of the end of the current month of use. A request to delete the online shop will also be considered as notice of contract termination. Fees which have already accrued for the current month of use will not be refunded (not even on a pro-rata basis).
The right of either party to terminate the contract for cause (“außerordentliche Kündigung aus wichtigem Grund”) remains unaffected. Cause for termination by Shopware shall include, without limitation, (a) Shopware’s inability to henceforth provide the services or run SaaS in accordance with the acknowledged data protection or information security requirements, in particular (without limitation) due to a change of the law or the lack of profitability, or (b) proper termination by a Shopware subcontractor of a contract for the provision of preliminary services required for the provision of SaaS with no fault of Shopware such that observance of the ordinary termination period in the relationship with the user is impossible or unreasonable for Shopware.
In this case, Shopware will block access to SaaS upon termination of the contract. At the customer’s request, Shopware will in its reasonable discretion make the customer’s SaaS contents available to customer by way of export or give the customer the possibility to export its contents from SaaS within one month from contract termination. Thereafter, Shopware shall be entitled to completely delete access and all posted contents and user names. Shopware will only provide further support in the context of contract termination if this is specifically agreed in text form (“Textform”)

8.11. Rights in aggregated data and customer feedback

Shopware is granted by the customer the exclusive right unlimited in terms of temporal and territorial validity and unlimited in terms of scope and purpose, to use any customer feedback relating to the customer’s use of SaaS for all known and unknown types of exploitation. Shopware shall not owe remuneration for this grant of rights; §§ 32a, 32 c UrhG (German Copyright Act) remain unaffected. The customer makes sure that it is entitled to grant the said rights also on behalf of its employees and any other SaaS users.
Shopware shall acquire the exclusive rights to use and exploit the work results arising from the use of SaaS or otherwise in connection with SaaS, which shall however not enable any identification of the users or the users’ contents, as well as any other information relating to the use of SaaS other than business secrets, effective as of the time of origin of such work results or information. Shopware shall not be subject to any restrictions or limitations with regard to the - also commercial - use of the said work results both for Shopware’s own purposes and for third-party purposes (e.g. benchmarking, quality improvement). The data protection and secrecy obligations remain unaffected thereby.

8.12. Data processing on behal

In the case of SaaS, the contract for data processing on behalf according to Art. 28 GDPR, which is attached as an Annex hereto, shall take effect with the signing of the contract. Shopware shall at any time at the customer’s request provide the customer with an additional list in text form (“Textform”) specifying the technical and organizational measures implemented with respect to SaaS.
 

9. Training and other services

This section applies to any separate service agreements concluded with the customer for the provision of training and other services (referred to hereinafter as “service agreements”). The employees entrusted with the provision of these services are chosen by Shopware in its discretion. The customer shall not be entitled to claim provision of the services by specific individual employees.
Shopware decides on the way and mode of service provision in its sole discretion. If the results of the services provided have to be delivered to the customer, only the results actually delivered to the customer shall be binding.

9.1. Knowledge collection

Shopware makes online training, documentation, online manuals and self-made tutorials available to the customer in a free know-how collection. The customer shall not be entitled to claim provision of the know-how collection. Shopware may at any time restructure, reduce the range of, or completely discontinue the know-how collection.

9.2. Forum

Shopware makes a free forum available to the customer where the customer can exchange information with other customers. The active use of the forum requires a Shopware account according to sec. 4. The customer shall not be entitled to claim provision of the forum. Shopware may at any time restructure, reduce the range of, or completely discontinue the forum.
The customer is responsible for the contents which the customer posts in in the forum. The contents which the customer posts in the forum are foreign third-party contents for Shopware which Shopware does not adopt as its own. Shopware is a mere technical service provider which only makes the forum available to its customer and thus is not responsible for third-party contents.
If Shopware becomes aware of an obvious infringement of rights in the forum, Shopware shall delete the relevant contributions or otherwise restrict access to the contributions. The customer shall indemnify Shopware from any and all third-party claims which are asserted against Shopware with respect to the contents which the customer has posted in the forum. This shall also include the reasonable and customary costs of legal defense against third-party claims.

9.3. Contract term and further details

The services underlying the service agreements offered by Shopware are described in more detail at https://www.shopware.com/en/pricing/. In the case of SaaS, the respective services for SaaS are included in the plan booked by the customer, as described in sec. 8.1 above.  The term of the service agreements is 12 or 24 months and is automatically extended by another 12 or 24 months respectively, depending on the initially agreed contract term. The service agreement can be terminated up to one day before the expiry of the respective term, either through the Shopware account or by email to sales@shopware.com.
Shopware will provide the services under the service agreement only for the respective current software generation and for not more than the two past releases of the On-Prem Shopsoftware (both minor and major updates are counted in for such purpose). The customer is therefore obliged to keep the Shopsoftware and the software extensions up to date and in particular to install any provided updates and upgrades or purchase new paid software generations if and to the extent they are not provided to the customer under the applicable maintenance agreement. Otherwise, the customer cannot use the services under the service agreement until the software has been updated. In the case of SaaS, Shopware is responsible for updating the Shopsoftware and carries out the updates automatically under the plan booked by the customer.
In the case of non-compliant provision of services attributable to Shopware (“zu vertreten haben”), Shopware shall provide the services once again at no additional expense to the customer within a reasonable period. This is however subject to an appropriate complaint by customer in text form (“Textform”) to be issued without undue delay (“unverzüglich”) but no later than within two weeks from becoming aware of the non-compliance. Any further claims of the customer remain unaffected.
If a service agreement is terminated, Shopware shall be entitled to the fees for the services provided up to the effective date of the termination.
The right to terminate the agreement for cause (“außerordentliche Kündigung aus wichtigem Grund“) remains unaffected.

9.4. Training offered by Shopware

Shopware offers the customer live and online training courses to become familiar with the Shopsoftware or the software extensions.

9.4.1. Live trainings by Shopware

Live training is subject to the following terms and conditions:
The registration for live training can be made by phone, in text form (“Textform”) or by online registration. The registration becomes binding upon confirmation by Shopware at the latest. Available places will be assigned in the order in which registrations are received. The training will be implemented with the training content and at the training prices stated on the Shopware website at the time of registration for the live training. Only temporary participation in the live training does not entitle the participant to a reduction in the price.
If the customer cancels his/her registration up to ten days before the live training starts, Shopware will reimburse the full training price. Otherwise, Shopware will reimburse 50% of the training price. Participation by another person taking the place of the registrant is free of charge.
The training can be cancelled by Shopware up to ten days before the training starts without giving the reasons for the cancellation. After that time, the training can only be cancelled for cause including, without limitation, illness of the lecturer or occurrence of an incident according to sec.11. If Shopware cancels the training, training prices already paid shall be reimbursed in full. Other claims of the customer are excluded. Shopware can postpone, reschedule or relocate the training until one month before the training starts. Shopware shall notify the customer of the postponement, rescheduling or relocation without undue delay (“unverzüglich”). Customer’s registration remains valid unless Shopware is informed in text form (“Textform”) within a period of two weeks that the customer does no longer want to participate in the live training due to the postponement, rescheduling or relocation. In this case, Shopware shall reimburse the training price. Other claims of the customer are excluded.
Shopware reserves all rights in the training documents. In particular, the customer is not allowed to copy, reproduce or make the training documents available to the public without the prior explicit consent of Shopware in text form (“Textform”)
In order to successfully participate in the live training and – if available for the booked training – obtain a training certificate, the conditions and requirements laid down in the respective training description must be fulfilled.
 

9.4.2. Online training by Shopware

In addition to live training, Shopware also offer its customers online training and online certification. The online training, too, is intended to make the customer familiar with the Shopsoftware and the software extensions, if any. Online training is offered through the e-learning platform Udemy. Registration is made online and the conditions of use of Udemy must be accepted.
In addition, Shopware offers its customers the possibility to obtain online certification. Registration for online certification is made online and becomes binding upon confirmation by Shopware.
Certification requires fulfilment of the necessary know-how and qualification requirements specified on the online training website and is awarded at the prices listed there.
The online certification process can be cancelled up to 30 days from registration provided the certification process has not yet been started by the customer. In this case, Shopware shall reimburse the full certification price.
Shopware reserves all rights in the online training documents and the documents relating to, and test questions asked in, the online certification procedure. The customer is not allowed to copy, reproduce or make the said material available to the public without the prior explicit consent of Shopware in text form (“Textform”).
 

10. Fees and terms of payment

Unless otherwise stipulated in these GTC or the contract, the following shall apply:
The prices remain binding for one month from the calendar date of the offer. Fees stated in the offer are net prices, exclusive of the statutory value-added tax which must be paid on top. Shopware can invoice the customer on a monthly basis and, in the case of ongoing services, the invoices are to be paid in advance at the beginning of every month of use.
Invoices are due for payment immediately upon receipt (“Zugang”) but no later than within one week, without deduction. Shopware does not grant any discounts. In the case of late payment (“Verzug”), default interest at the current statutory rate will be incurred. Payment shall only be deemed duly made if and as soon as Shopware can freely dispose of the payment amount without restrictions.
Fees charged according to time and effort are invoiced after completion of the services at the prices of Shopware valid upon contract conclusion. The invoices shall be accompanied by appropriate time sheets or other supporting documents. The customer may object to the items stated therein within two weeks in text form (“Textform”). If the two-week period has expired without objection by the customer, the time sheets and other supporting documents shall be deemed accepted.
Travel times, travel expenses and cost of accommodation are invoiced as a function of the distances covered to and from the corporate domicile of Shopware. Travel times and travel expenses shall be incurred for travels from the corporate domicile of Shopware to and from the place of service provision to the customer and/or for travels between different places of service provision to the customer. Unless otherwise agreed, the customer shall reimburse Shopware for the actual amounts incurred for travel times, travel expenses and ancillary costs and other expenses but at least in the amount of the admissible fiscal flat rates. Travel time is working time.
If invoicing according to time and effort is agreed in the contract, this shall be deemed to include the time spent on the services provided under the contract only. The material used is charged separately. Waiting times and stand-by times which are attributable to the customer (“zu vertreten haben”) (e.g. on-site stand-by duty which is explicitly requested by the customer) are charged at working time rates.
The customer is only entitled to set its own counterclaims off against the claims of Shopware if the counterclaims are acknowledged by Shopware or are undisputed or have been awarded by final non-appealable decision (res judicata); this shall not apply to warranty claims of the customer arising under the same contract. The customer may only assert a right of retention if the customer’s counterclaim is based on the same contract.
 

11. Dates of service provision, term

Any dates or deadlines agreed with the customer shall only be binding if they are explicitly confirmed by Shopware as binding in text form (“Textform”). Agreed deadlines shall only be deemed to be binding fixed dates (“Fixtermine”) if they have been explicitly confirmed to the customer as “binding fixed date” in text form (“Textform”).
Shopware is entitled to provide partial services if this is reasonable for the customer.
If compliance with the agreed dates or deadlines is prevented by a cause which is not attributable to Shopware (“nicht zu vertreten haben”) including, without limitation, strike, lock-out or acts of God such as earthquakes, flood, fire, storm or pandemics (referred to hereinafter as “incident”), the agreed dates and deadlines shall be postponed by the duration of the incident, plus a reasonable start-up period. Shopware shall notify the customer of any occurring incident and its presumable duration without undue delay (“unverzüglich”). If increased time and effort is required due to the incident, Shopware may also charge the customer for the additional time and effort unless the incident is not attributable to the customer either (“nicht zu verterten haben”).
If the customer is entitled to withdraw from the contract for improper service provision by Shopware or to claim damages in lieu of performance (“Schadenersatz statt der Leistung”) or alleges to be entitled to any such right, the customer shall at Shopware’s request declare in text form (“Textform”) within a reasonable period fixed by Shopware whether the customer invokes any of the aforesaid rights or rather wishes service provision to be continued. In the case of withdrawal from the contract, the customer shall reimburse Shopware for the value of any previous options of use.
If the contract is concluded for an indefinite period, it can be terminated by three months’ notice, effective as of the end of the calendar year, subject to any provision to the contrary contained in these GTC or the contract. The earliest possible termination shall be effective as of the end of the first full calendar year following the year of contract conclusion. Termination shall not be permissible during any agreed minimum contract term.
The right of termination for cause (“außerordentliche Kündigung aus wichtigem Grund“) remains unaffected.
 

12. Assistance and supplies to be provided by customer

The customer is obliged to provide assistance and supplies as subsidiary obligations (“Nebenleistung”) under the contract. The customer shall support and assist Shopware and implement within its area of control all reasonable and feasible prerequisites which are required for proper service provision by Shopware.
This includes, without limitation, provision by the customer of all necessary information without request by Shopware, e.g. data for access to servers, providers, Internet shops, administration areas. In addition, the customer shall ensure the availability of qualified personnel to support and assist Shopware. The customer is responsible for proper data back-up at least once a day, in particular prior to the installation of Shopsoftware or software extensions, patches or updates.
The customer shall report any bugs or malfunctions including defects (“Mängel”) in text form (“Textform”), giving a detailed and understandable description and providing all information which may be helpful for the rectification and analysis of the defect, malfunction or bug. The customer shall in particular describe the procedures which have triggered the malfunction as well as the manifestation and consequences of the malfunction.
When describing, localizing, identifying and reporting the malfunction, the customer must follow the instructions from Shopware.
The customer shall personally attend the support services or assign qualified employees to do so who are authorized to assess, and decide on, malfunctions, functionality extensions or reductions or changes to the Shopware structure. If required, any other work on the system environment must be suspended during the remedial measures.
The customer shall appoint a responsible contact person who is authorized to make, or bring about without due delay (“unverzüglich”), binding decisions for the customer and make legally binding declarations with respect to the contracts concluded between the parties. The contact person shall be available for all required information.
Unless otherwise agreed, the customer shall ensure additional safekeeping of all documents, information and data provided by Shopware and necessary for service provision such that they can be recovered in the case of damage to, or loss of, data carriers.
The customer undertakes to implement appropriate technical and organizational measures to ensure the proper use of the Shopsoftware and software extensions in conformity with the contract, the intended use and the applicable laws. Shopware shall be entitled to claim additional compensation of expenses incurred if

  1. Shopware takes steps in response to a malfunction report with no malfunction, bug or defect being found unless the unfounded malfunction report is not attributable to the customer (“nicht zu vertreten haben”), or
  2. additional expenses are incurred for non-compliance by the customer with its contractual duties unless the non-compliance is not attributable to the customer (“nicht zu vertreten haben”).

The customer shall ensure that the appointed contact person provides in due time all documents, information and data which are required for service provision in complete and correct form and free of charge unless Shopware is obliged to provide the required information or material.
In addition, the customer shall ensure that the said information, documents and data are kept up to date. Shopware may assume that the documents, information and data provided are complete and correct unless their incompleteness or incorrectness is obvious.
The customer shall keep the Shopsoftware, software extensions and all access data related thereto safe and shall implement all measures necessary and reasonable under the current state of the art to prevent misuse.
In particular, the customer shall ensure that any unauthorized access to the administration areas is prevented.
The customer is not allowed to remove or modify without appropriate authorization any copyright notice or marks or labels of Shopware or other information referring to the ownership of Shopware.
The customer shall abstain from any measures which jeopardize or impair the functionality of the Shopsoftware or software extensions and shall not access data without appropriate authorization. In addition, the customer must ensure that the contents posted, and any other data provided, by the customer do not carry viruses, worms or Trojans. 
The customer shall compensate Shopware for any damage resulting from the non-compliance with these duties and shall further indemnify Shopware from any and all third-party claims (including court fees and reasonable and customary lawyers’ fees) which third parties may assert against Shopware for non-compliance with these duties by the user. This shall not apply if the breach of duty is not attributable to the customer (“nicht zu vertreten haben”).
 

13. Compliant use of the Shopsoftware and SaaS

When using the Shopsoftware, the software extensions and SaaS, the customer shall comply with the applicable law and observe third-party rights.
In particular, the customer must not (without limitation)

  • Infringe proprietary rights of third parties such as trademarks, copyrights and rights in names and designations,
  • Distribute or otherwise disseminate insulting, offensive, defamatory, vilifying, pornographic or racist contents or contents inciting racial hatred or harmful to young people or other criminal contents regarding the Shopsoftware or SaaS,
  • Use the Shopsoftware or SaaS to unreasonably bother, molest or harass other customers and/or third parties contrary to data protection law or fair competitive practices such as by unsolicited advertising emails (spams) or insinuating or sexual communication,
  • Use any mechanisms, software and/or scripts outside or beyond the functionalities, features and interfaces made available by the Shopsoftware, software extensions and SaaS, especially if services provided by Shopware which are necessary for the proper use of the Shopsoftware, software extensions or SaaS are blocked, modified, copied and/or rewritten thereby, or
  • Try to impair the Shopsoftware, software extensions, SaaS or the security systems used by Shopware or the contents retrievable thereby by data manipulation (“Datenveränderung“ according to § 303a Strafgesetzbuch (German Criminal Code – “StGB“), computer sabotage (“Computersabotage” according to § 303b StGB), forgery of data of probative value (“Fälschung beweiserheblicher Daten” according to § 269, 270 StGB), suppression of documents/data of probative value (“Unterdrückung beweiserheblicher Daten” according to § 274 StGB), computer fraud (“Computerbetrug” according to § 263a StGB), data espionage (“Ausspähen von Daten” according to § 202a StGB), phishing (“Abfangen von Daten” according to § 202b StGB) or other criminal offences, in which case Shopware will also request the prosecution of any attempted offences.

In the case of severe breaches or repeated breaches despite warning, Shopware shall be entitled to terminate any license, maintenance or support contracts or rental agreements for cause (“außerordentliche Kündigung aus wichtigem Grund”) unless the breach is not attributable to the customer (“nicht zu vetreten haben”).
The statutory rights of the customer under §§ 69d, 69e UrhG (German Copyright Act) remain unaffected; customer’s exercise of these rights shall not be deemed to constitute a breach of this sec. 13.
 

14. Assignment of rights

The customer may only assign the rights under the contract to third parties with the consent of Shopware. Shopware will only deny its consent for legitimate reasons.
Shopware is entitled to transfer or assign the contracts concluded with the customer or individual rights thereunder to third parties. If the third party is an affiliate of Shopware within the meaning of §§ 15 et seq. AktG (German Stock Corporation Act), the transfer or assignment shall be valid and effective even without the consent of the customer. Otherwise, Shopware shall notify the customer of the intended transfer or assignment in text form (“Textform”) in due time.
If the customer objects to the transfer or assignment, the transfer or assignment will not take effect. In this case, Shopware shall be entitled to terminate the relevant contract for cause (“außerordentliche Kündigung aus wichtigem Grund”), effective as of the intended date of transfer or assignment.
In addition, Shopware shall be entitled to have all services provided to the customer through subcontractors. The contract between the customer and Shopware remains unaffected thereby.
 

15. Reservation of Proprietary Rights

Shopware reserves title to the delivered products until all fees and compensations due have been paid in full and all claims under the business relationship with the customer have been satisfied.
The customer shall notify Shopware in text form (“Textform”) without undue delay (“unverzüglich”) if third parties should assert rights in the products delivered subject to reservation of title, e.g. in the case of seizure or insolvency of the customer. The customer shall bring the reservation of title by Shopware to the attention of the third parties without undue delay (“unverzüglich”).
 

16. Financial inability

If the customer is unable for financial reasons to fulfil its obligations to Shopware, Shopware shall be entitled to terminate any reciprocal contracts with the customer by withdrawal or, in the case of contracts for the performance of a continuing or recurring obligation (“Dauerschuldverhältnis”), by termination without notice, also in the case of a petition in solvency being filed by the customer. § 321 BGB (German Civil Code) and § 112 InsO (German Insolvency Act) remain unaffected. The customer shall inform Shopware, in good time and in text form (“Textform”), of any threatening insolvency or inability to pay.
 

17. Warranty claims

Shopware shall satisfy any warranty claims for defects in quality by subsequent performance (“Nacherfüllung”). For such purpose, Shopware shall in its discretion either provide the customer with a new, flawless software product or remedy the defect.
The limitation period for warranty claims is one year and runs from delivery of the product. In the case of willful or grossly negligent misconduct, fraud, personal injury, defects in title, express warranties or product guarantees or claims under the Produkthaftungsgesetz (German Product Liability Act), the statutory limitation periods shall apply.
Warranty claims of the customer are excluded if the customer uses the Shopsoftware, software extensions or SaaS for purposes other than the contractually agreed purpose or has modified or extended the Shopsoftware, software extensions or SaaS including, without limitation, the source code, and the defect was caused by such improper use or modification. Initial no-fault liability for defects in the case of rental of the Shopsoftware, software extensions or SaaS is excluded, too.
If the customer asserts a warranty claim for a defect of the software extension purchased in a Shopware store which was not produced by Shopware, the customer shall be obliged to assert the claims against the producer of the software extension in the first place. For such purpose, Shopware assigns to the customer all warranty claims to which Shopware itself is entitled against the producer of the software extension.
Regardless thereof, Shopware is at all time obliged to do the following:
During the warranty period, Shopware provides the customer with a corrective software extension version, if available, provided by the producer. If such a corrective version is not available, Shopware shall offer the customer a workaround solution. If a workaround is impossible or unreasonable, too, Shopware will endeavor to cause the producer to provide a corrective version of the software extension as quickly as possible. At the customer’s request, Shopware shall inform the customer of the measures taken for such purpose. A workaround solution shall in particular (but without limitation) be deemed unreasonable for Shopware if this requires an intervention in the source code/object code of the software extension.
The customer shall be obliged to install/commission a corrective software extension version at its own expense except when this is impossible or unreasonable for the customer because the new version differs significantly from the previous version or the customer would incur considerable expenses as a result of the installation/commissioning of the new version.
Express warranties or product guarantees require express confirmation by Shopware in text form (Textform”). Express warranties or product guarantees shall only be deemed given if Shopware explicitly uses either of the terms “express warranty” / “product guarantee”, “expressly warrants” / “guarantees”.
 

18. Liability

Shopware shall be fully liable for damage caused by an injury to life or limb or health or by willful or grossly negligent misconduct or fraud.
Otherwise, in the case of paid service provision or product delivery and simple negligence (“einfache Fahrlässigkeit”), the liability of Shopware shall be limited to breaches of “essential contractual duties (“wesentliche Vertragspflichten“); these are duties the fulfilment of which is absolutely necessary and indispensable for the customer to make use of the services of Shopware at all and on the compliance with which the customer usually relies or is reasonably allowed to rely. However, the liability of Shopware for a breach of essential contractual duties (“wesentliche Vertragspflichten”) is limited to the typical foreseeable damage related to the contract. The parties are agreed that twice the annual remuneration paid by the customer but at least EUR 50,000.00 EUR per calendar year shall constitute the typical foreseeable damage related to the contract and that any liability for simple negligence (“einfache Fahrlässigkeit”) beyond that limit requires a separate agreement between the parties in text form (“Textform”).
In the case of free services including the provision of free trial versions or installations or demonstration versions, any liability of Shopware for simple negligence (“einfache Fahrlässigkeit”) is excluded.
Shopware shall only be liable for the loss of data under the foregoing provisions if the loss would not even have been prevented by data back-up measures which the customer was obliged to carry out but failed to implement. Shopware does not accept liability for an impairment or disturbance of the agreed use of the services provided by Shopware which was cause by improper or incorrect use by the customer without consultation or intervention of Shopware.
The foregoing limitations of liability shall apply accordingly in favor of the vicarious agents or other persons engaged by Shopware in the fulfilment of its obligations (“Erfüllungsgehilfen”), officers, executive bodies or representatives of Shopware.
 

19. Third-party proprietary rights

Shopware shall indemnify the customer from any and all third-party claims for infringement of proprietary rights (including, without limitation, trademarks, designs, patents, copyrights) caused by the Shopsoftware, software extensions or SaaS purchased from Shopware.
The customer shall not make any statements regarding the infringement of the proprietary right to the third party without the explicit consent of Shopware in text form (“Textform”), in particular the customer shall not make any legal or factual concessions or otherwise accept liability for the infringement.
Shopware shall be entitled in this case, at its sole expense, (a) to modify the Shopsoftware, software extensions or SaaS such that the infringement of the proprietary right is eliminated, or (b) to purchase the necessary rights from the third party for retransfer to the customer. If the infringement can be eliminated by the installation of patches or updates, the customer shall be obliged to install them unless this is impossible or unreasonable for the customer because the new version differs significantly from the previous version or the customer would incur considerable expenses as a result of the installation/commissioning of the new version.
The customer shall notify Shopware in text form (“Textform”) without undue delay (“unverzüglich”) of any infringement of proprietary rights caused by the Shopsoftware, software extensions or SaaS, which is brought to the customer’s attention. 
 

20. Information security

The customer itself is responsible for all information security measures including IT security of the system environment used by the customer; this shall not apply to SaaS.
 

21. Export control, transfrontier delivery

The customer is solely responsible for compliance with any import and export regulations applicable to the provision of services or delivery of goods, in particular (without limitation) those applicable in the USA.
The customer bears all customs duties, charges, fees, taxes and other duties or charges incurred in the case of transfrontier service provision or product delivery. The customer is solely responsible for handling any statutory or administrative procedures relating to transfrontier service provision or product delivery.
 

22. Data protection and confidentialit

Personal data are processed in strict compliance with the applicable data protection law. The Privacy Policy of Shopware which is available at https://www.shopware.com/en/privacy/ shall apply. Both parties undertake to comply with the applicable data protection regulations. They shall in particular commit their employees to observe and protect the confidentiality of personal data.
Shopware reserves all ownership rights and copyrights to illustrations, images, drawings, calculations and other documents. This shall also apply to documents which Shopware explicitly designates as “business secrets” or “confidential information”. Such documents may only be disclosed or passed on to third parties with the explicit prior consent of Shopware in text form (“Textform”).
 

23. Choice of Law

These GTC are governed by German law with the exception of UN Sales Law and the conflict of laws rules; Art. 3 subs. 3 and subs. 4 of the Rome-I Regulation remain unaffected.
 

24. Place of jurisdiction

If the customer is a merchant (“Kaufmann”) or legal entity under public law or special fund under public law (“öffentlich-rechtliches Sondervermögen”), the place of exclusive jurisdiction for all disputes arising out of this contractual relationship or in the context of the execution of this contractual relationship – also including international cases – shall be the corporate domicile of Shopware. This shall not apply if another place of exclusive jurisdiction is prescribed by law.
 

25. Right of change

New contracts shall be governed by the respective current GTC valid at the time of contract conclusion.
For ongoing contracts, Shopware reserves the right to change these GTC. The changes shall take effect if the customer (a) explicitly accepts the change, or (b) does not object to the changes in text form (“Textform”) within one month from receipt (“Zugang”) of the change notice and Shopware has instructed the customer in the change notice as to its right to object and the time limit to be observed for the objection. If the customer objects to the changes in text form (“Textform”), the previous version of the GTC shall continue to apply. In this case, Shopware shall be entitled to terminate the contract concerned for cause within two weeks from receipt (“Zugang”) of the objection. The right of change shall not apply to changes which pertain to essential contractual duties (“wesentliche Vertragspflichten”) of either party.
 

26. Final provisions

All purchase orders and engagements require (order) confirmation by Shopware in text form (“Textform”).
There are no oral side agreements. Changes and amendments must be made in text form (“Textform”). This shall also apply to a waiver of the text form requirement. The precedence of individual agreements between the contracting parties remains unaffected.
The invalidity, if any, of individual provisions of this contract shall be without prejudice to the validity of the remaining provisions hereof. In this case, the contracting parties shall agree on a new valid provision which approximates the economic purpose of the invalid provision as closely as possible. This shall apply accordingly in the case of an unforeseen gap in the contract.

 

***

Annex 1:  Data processing on behalf in the case of SaaS

 

1. Data processing contract and processing specifications

This agreement for data processing on behalf (referred to hereinafter as “DPA”) defines and lays down the parties’ rights and duties under data protection law with respect to all processing activities to be performed under the contracts already concluded or still to be concluded between the parties (referred to hereinafter as the “main contract”) and which involve the processing of personal data by Shopware (referred to hereinafter as “Processor”) for and on behalf of the customer (referred to hereinafter as “Controller”).
This DPA and all integral parts thereof shall apply once Controller has engaged Processor under the data processing contract according to Art. 28 GDPR to process personal data (referred to hereinafter as “data”). This DPA constitutes the regulatory framework for a multitude of data processing activities. In the case of discrepancies, the provisions of this DPA and its integral parts shall take precedence over the provisions of the corresponding main contract.
The data protection specifications to be observed for the different processing activities (referred to hereinafter as “data processing specifications”) shall be laid down in the annexes to this DPA (referred to hereinafter as “annexes”) prior to the commencement of the data processing. These shall include, without limitation, the “Data processing specifications for SaaS” regarding the subject matter and duration as well as the nature and purpose of the processing, the categories of data and categories of persons concerned by the data processing (referred to hereinafter as “data subjects”) as well as the “Technical and organizational measures according to Art. 32 GDPR” regarding the technical and organizational measures to be implemented (referred to hereinafter as “TOM”).
The annexes are integral parts of this DPA. In the case of discrepancies, the provisions in the annexes shall take precedence over the more general provisions of the DPA. If reference is made hereinafter or in the annexes to the DPA, this shall be deemed to constitute reference to the DPA including all integral parts thereof.

2. Controllership and data processing upon instruction

Controller is solely responsible under this DPA for compliance with the applicable statutory provisions including, without limitation, for the lawfulness of disclosure to Processor and the lawfulness of the processing (“Controller” within the meaning of Art. 4 no. 7 GDPR).
Processor shall process the data exclusively upon and according to the instructions received from Controller except in the exceptional cases listed in Art. 28 (3) point (a) GDPR (other statutory processing obligation). Oral instructions must be confirmed in text form (“Textform” according to § 126b BGB (German Civil Code)) without undue delay (“unverzüglich”).
Processor shall rectify or erase the data to be processed under the contract or restrict the processing if instructed by Controller to do so, provided the instruction is within the limits of the authority to give instructions.
Processor shall notify Controller without undue delay (“unverzüglich”) if Processor holds that an instruction is contrary to the applicable data protection regulations or the provisions of this DPA. Processor may suspend the implementation of the instruction until Controller has adjusted or confirmed the instruction in text form (“Textform”). Processor is entitled to refuse the implementation of instructions which are obviously contrary to data protection law.
Processor ensures that the persons authorized to perform the data processing (a) are familiar with Controller’s instruction and observe them and (b) have signed a confidentiality agreement or are subject to an appropriate statutory obligation of secrecy. The obligations of confidentiality and secrecy shall survive termination of the data processing

3. Processing security

The parties agree that TOM according to Art. 32 GDPR will be implemented to ensure adequate data protection. Processor reserves the right to change the TOM; Processor must however ensure that the protection level as a whole does not fall below the contractually agreed level. Processor shall provide Controller with a list of the TOM at any time upon request.

4. Notification of personal data breaches and processing error

Processor shall notify Controller without undue delay (“unverzüglich”) of any personal data breach within the meaning of Art. 4 no. 12 GDPR which is brought to Processor’s attention and which has occurred within its sphere of control as well as of any personal data breach which is reasonably suspected to have occurred under Processor’s control.
Controller shall notify Processor of any detected processing errors without undue delay (“unverzüglich”).
Processor shall implement the corrective measures necessary to eliminate the personal data breach or processing error without undue delay (“unverzüglich”) and to mitigate any possible adverse consequences, in particular for the data subjects concerned. Processor shall insofar consult with Controller on how to proceed.
Oral reports of personal data breaches or processing errors must be documented and filed in text form (“Textform”) without undue delay (“unverzüglich”).

5. Transfer of data to recipients in third countries 

Data may be transferred to a recipient in a third country outside the EU and the EEA if the conditions and requirements laid down in Art. 44 et seq. GDPR are complied with. Processor shall only enter into standard agreements with further processors. It is the sole responsibility of Controller to assess whether or not these agreements provide appropriate additional safeguards to ensure an adequate data protection level.

6. Subcontracting with further processors

Processor is entitled to have the processing of personal data performed by further processors (referred to hereinafter as “subcontractors”) in whole or in part. Processor shall notify Controller in text form (“Textform”) in due time before the subcontracting is concluded or changes are made to the subcontracting. Controller is entitled to object to the subcontracting in text from (“Textform”) for cause within four weeks of the notification. If the objection by Controller is justified, the latter shall grant Processor a reasonable period to substitute the rejected subcontractor by another one. If this is impossible for Processor or unreasonable for Controller, the respective party shall be entitled to terminate the main contract for cause (“außerordentliche Kündigung aus wichtigem Grund”). Subcontractors which are engaged by Processor because Controller wants to use a software extension (hereinafter briefly referred to as “app provider”) shall be approved by Controller together with the purchase of the relevant software extension. 
Processor shall impose on the subcontractor exactly the same data protection obligations as are imposed on Processor in this DPA for the benefit of Controller. In particular, the TOM to be agreed with the subcontractor must ensure an equivalent protection level.
Services which Processor procures from third parties as mere ancillary services to support its business activities outside the data processing on behalf shall not be deemed to constitute subcontracting within the meaning of this sec. 6. Processor is however obliged to implement appropriate measures to ensure the protection of personal data also with regard to these ancillary services.

7. Rights of data subjects and support and assistance to Controller

Processor shall notify Controller without undue delay (“unverzüglich”) if a data subject asserts a right under chapter III of the GDPR against Processor. Processor shall support and assist Controller within the limits of its possibilities in handling the data subject’s request and in complying with the obligations under Art. 33 to 36 GDPR.

8. Controller’s right to control and information

Processor shall furnish appropriate proof of compliance with its obligations to Controller. Controller checks the appropriateness of the furnished proof. 
In order to demonstrate compliance with the agreed protection measures and their proven efficiency, Processor may refer to appropriate certifications and other suitable proof of qualification. Controller’s right of inspection remains unaffected thereby.
Controller is entitled, at usual business hours and without disturbing Processor’s business operations and, as a rule, subject to prior announcement to be made in good time before, to carry out inspections at Processor’s premises to verify compliance with the applicable data protection regulations; this shall not apply to services provided by Amazon Web Services (AWS) as a subcontractor. Processor may make the inspection dependent on the signing of a non-disclosure agreement relating to the data of other customers and the TOM implemented by Processor. Processor is obliged to enable, facilitate and cooperate in audits and inspections carried out by Controller.
If deficiencies are identified in the inspection, the parties shall consult on the corrective measures to be implemented.
The parties shall mutually inform each other without undue delay (“unverzüglich“) if a supervisory authority exercises any of its powers under Art. 58 GDPR. They shall mutually support and assist each other within their respective areas of responsibility in fulfilling their respective obligations to the supervisory authority.

9. Liability and compensation of damage

If a data subject claims compensation of damage from either party for breach of applicable data protection regulations, the party against which the claims is asserted shall notify the other party without undue delay (“unverzüglich”).
Controller and Processor shall be liable to data subjects according to the provisions of Art. 82 GDPR, subject to the limitations laid down in the Shopware GTC.
The parties shall mutually support and assist each other in the defense against claims for damages asserted by data subjects unless this would jeopardize the legal position of one party in relation to the other party, the supervisory authority or third parties.

10. Costs

The costs incurred for measures taken by Controller with respect to Processor shall be borne by Controller unless they are deemed included in, and covered by, the remuneration agreed in the main contract. This shall in particular (but without limitation) apply to the costs incurred by audits, controls and inspections which Controller carries out at Processor’s premises.

11. Contract term

The DPA is concluded for an indefinite period and ends automatically upon termination of the contract without a separate notice of termination being required. In this case, Processor shall, without undue delay (“unverzüglich”) and in the discretion of Controller, either return the processed data or delete them in accordance with the applicable data protection requirements and confirm the deletion to Controller in text form (“Textform”). Processor shall also delete any copies of the data. If Processor itself is obliged by law to retain the data, Processor shall notify Controller of the retention obligation in text form (“Textform”).

12. Final provisions

Processor shall notify Controller in text form (“Textform”) without undue delay (“unverzüglich”) if the data of Controller are endangered due to seizure or attachment measures levied against Processor or due to insolvency or composition proceedings or other events or third-party measures. Processor shall without undue delay (“unverzüglich”) inform all persons carrying out the said measures that the responsibility for the data lies exclusively with Controller.
There are no oral side agreements. Changes and amendments to this DPA must be made in text form (“Textform”) and require explicit reference to this DPA to be valid. Any deviating oral agreements between the parties are invalid. This shall also apply to changes of this text form requirement.
If individual provisions of this DPA should be invalid in whole or in part, the validity of the remaining provisions hereof shall remain unaffected thereby.
The parties undertake in this case to replace the invalid provision(s) by valid provisions which approximate the economic purpose pursued by the parties upon conclusion of this DPA as closely as possible.
The foregoing shall apply accordingly in the case of an unintended gap in this DPA.
This DPA is governed by German law with the exception of the conflict of laws rules; Art. 3 subs. 3 and subs. 4 of the Rome-I Regulation remain unaffected.

Data processing specifications for Saa

The parties hereby agree on the following supplementary specifications in addition to the Agreement for data processing on behalf:

1. Subject matter of the processin

The processing refers to the provision by Shopware of the services specified in the contract on SaaS and, where applicable, on software extensions to Controller and includes the anonymization of usage-related personal data for further use by Shopware according to the SaaS contract. For the avoidance of doubt, it is made clear that there may be several different contracts if Controller also uses software extensions in addition to SaaS. In this case, all contracts shall be deemed included in the subject matter of the processing.

2. Duration of processing

The duration of the processing is stated in the contract.

3. Purpose of the processing

The data are processed continuously during the entire term of the contract. The personal data under the control of Controller are processed to the full extent according to Art. 4 No. 2 GDPR exclusively for the purpose of fulfilling the obligations of Shopware under the contract relating to the provision and operation of SaaS and, where applicable, the software extensions; the processing includes but is not limited to data collection, storage, modification, reading out, retrieval, use, disclosure, comparison, alignment, combination, anonymization and deletion.

4. Data categories

The data categories concerned by the processing depend on the specific use of SaaS and the software extensions by Controller. Data categories which may be processed in this context include master data, contact data, personnel data and identification numbers, credit card data and other payment data, data relating to customer behavior (usage data and connection data), contract data, user names and other personal data relating to the use of an online shop.

5. Categories of data subjects

The categories of data subjects concerned by the processing depend on the specific use of SaaS by Controller. The categories of data subjects concerned by the processing may include employees, customers, potential customers, suppliers and service providers.

6. Subcontractors

Processor engages the following subcontractors for the purpose of data processing:
- Amazon Web Services EMEA SARL (AWS Europe, infrastructure and platform; the data of Controller are stored in the region “eu-central-1” in Frankfurt on the Main, Germany); and
- Datadog Inc. (a cloud infrastructure monitoring service provider resident in the USA; the data of Controller are stored in the EU)
- App providers of the software extensions used by Controller (the details are stated in the description of the respective software extension in the Shopware store).

7. Disclosure of data to recipients in third countries

Subcontractors may from time to time disclose the data to recipients in third countries according to sec. 4 of the DPA. Such a disclosure will however only take place if the EU Commission has made an appropriate adequacy decision according to Art. 45 GDPR with respect to the respective third country or if other safeguards have been agreed with the recipient according to Art. 46 GDPR including, without limitation, standard contractual clauses (SCC) or binding corporate rules (BCR).