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Terms and Conditions

Last Updates: 2020-06-22

1. Scope

These General Terms and Conditions of Trade (hereinafter referred to as “GTC”) of shopware AG, Ebbinghoff 10, 48624 Schöppingen (hereinafter referred to as “shopware”), shall apply exclusively. Supplementary or deviating terms and conditions of the customer do not apply unless shopware has expressly agreed to their validity in writing. This also applies if shopware delivers or performs without reservation in knowledge of supplementary or deviating GTCs of the customer.

The German version of these General Terms and Conditions and the contract concluded with the customer, if applicable, shall always be binding on the customer. Translations into other languages are only intended to make it easier for the customer to understand ("reading version"). This also applies to any landing pages provided by shopware in languages other than German on the Internet.

All offers made by shopware shall only apply towards business enterprises, public law entities or special funds under public law as defined in § 310 Paragraph 1 BGB (German Civil Code), hereinafter referred to as "Customer". Consumers are excluded from shopware’s offers.

2. Offer of the shop software "Shopware"

shopware is the producer of the shop software “Shopware” (hereinafter referred to as “Shop Software”) and provides the customer on its internet site with information and downloads pursuant to different available editions of Shop Software for the running of an online-shop of its own.

To use the Shop Software, the system requirements published by shopware in the documentation at https://docs.shopware.com must be fulfilled by the customer. Otherwise a use of the Shop Software is not possible or only with errors.
shopware provides the Shop Software with the system requirements and, functionalities and interfaces, in a service description and in these GTC when the contract with the customer is concluded. Apart from that, the Customer has no claim to a certain design or equipment of the Shop Software. Properties of the Shop Software are only guaranteed if shopware has expressly designated them in text form as guaranteed characteristics for the Customer.

shopware shall be entitled to offer Shop Software as both free and proprietary software. Additionally shopware offers software extensions for the shop software. The conditions regulated in these General Terms and Conditions shall apply in each case.

If software is provided to the customer for demonstration and testing purposes, the software remains the property of shopware and the rights of use are only agreed as a simple rights of use for the duration of the agreed test or demonstration period, a maximum of 4 weeks from the date of provic. Technical safety devices may not be circumvented.

2.1. Free Software (Community Edition)

2.1.1. Service Description

The Shop Software in the Community Edition is licensed from Shopware 6 onwards under the MIT License (hereinafter referred to as "MIT") and is made available to the customer free of charge by way of donation.

The Shop Software in the Community Edition up to and including Shopware 5 is licensed under the Affero General Public License Version 3 (hereinafter referred to as "AGPLv3") and is made available to the Customer free of charge by way of gift.

The frontend of the standard template of the shop software is always licensed under the MIT license.

For the Community Edition, shopware exclusively offers the support services regulated in sections 9.1 to 9.2.

 

2.1.2. Terms of License and Use

With regard to the Shop Software in the Community Edition from Shopware 6 onwards, the license terms result opposite the customer from MIT and are to be considered by the customer. The license terms of MIT are under https://opensource.org/licenses/MIT. Deviating from this, parts of the provided standard theme package "ThemeWare" ("Boxicons" and "Font Awesome") are licensed under CC 4.0 because of the contained icons and under SIL OFL 1.1 because of the contained fonts, available under https://creativecommons.org/licenses/by/4.0/legalcode or https://scripts.sil.org/cms/scripts/page.php?item_id=OFL_web. All license conditions are stored in the installation package in the file "license.txt".

With regard to the Shop Software in the Community Edition up to and including Shopware 5, the license conditions of the AGPLv3 and the license conditions of the MIT license apply to the customer with regard to the standard template of the shop software. These are to be observed by the customer. The license conditions of the AGPLv3 are available at "www.gnu.org/licenses/agpl-3.0.de.html".

shopware grants the customer the right to use the Shop Software within the scope of the license itself and additionally within the scope of the terms of use in these GTC. The licensing conditions of the Community Edition shall not be restricted or amended by these General Terms and Conditions. Additional rights to separately acquired software extensions (Section 2.2), which are derived from their license conditions, are not restricted by this. No further rights are granted.

In return, the Customer grants shopware the right to name him as a reference customer and to use the Customer's word and picture trademarks for advertising purposes when using a "Community Edition".

For customers in Germany, AGPLv3 and MIT shall apply in addition to Clauses 15 to 17: The liability of shopware for the use of the Community Edition shall be limited to intent and gross negligence as in the case of free provision of services pursuant to Clause 17. Claims arising from defects are excluded when the Community Edition is provided, unless the defect has been concealed fraudulently.

Any use of the Community Edition contrary to these terms of license and use immediately terminates the right to use the Shop Software.

2.2. Proprietary Software

In addition to the Community Edition, shopware also offers Shop Software in a variety of proprietary editions against payment. The details provided on the internet site of shopware pursuant to these editions do not constitute a binding contractual offer. The customer can request at any time via a contact form a non-binding offer for the conclusion of a contract regarding the proprietary Shop Software free of charge and without obligation from shopware. The customer subsequently receives a written open offer regarding the requested edition of Shop Software. Alternatively, the Shop Software can also be purchased in the Community Store (Section 6). 

If the inquiry is to be qualified as an offer according to § 145 BGB, shopware may accept the offer within two weeks.

Exclusively as proprietary software, shopware offers software extensions for the shop software. These are exclusively part of an edition. An overview is available at https://de.shopware.com/versionen/erweiterungen/.

With the purchase of the proprietary software, a software service contract is automatically concluded for 12 or 24 months at the customer's option. The costs of the service contract are covered by the purchase price for the minimum term. The service contract is then automatically extended in accordance with the provisions in 8.3.
Alternatively, the proprietary software can be rented by the customer with a monthly notice period. The lease then includes software service and updates. A separate software service contract is then not required. 
 

2.2.1. Service Description

The service descriptions for the proprietary editions offered by shopware may be viewed on the internet page https://www.shopware.com/en/pricing/.

Regarding the proprietary editions shopware offers support in accordance with the stipulations quoted under Section 9.3. 
 

2.2.2. Terms of Use

The terms of license and use referred to under Section 2.1.2 shall apply to Shop Software and the standard template of the proprietary editions of Shop Software.

The software extensions referred to under Section 2.2 are protected by copyright. shopware grants the customer a simple, non-exclusive right to use the extensions and modules in connection with the shop software, subject to deviating agreements, limited to Europe and not transferable to third parties, unlimited in time or, in the case of rental, limited to the term of the contract, to use the extensions and modules in connection with the shop software under consideration of the following provisions.

The rights shall be granted for each contract solely for usage on one webserver for one online shop. If it is planned to the use the software on more than one server it is necessary to buy a Shopware Enterprise Edition (Section 2.4), e.g. in case of a shared hosting to distribute the load by usage of a load balancer. The use for another online shop always requires a further contract and the renewed granting of rights of use by shopware.

The software extensions referred to under Section 2.2 may, in the version deployed by the customer, only be used totally or partially for company-related purposes in connection with the customer’s business activities. An application in the sense of §§ 15 ff. AktG and companies in which the customer is otherwise directly or indirectly involved is not permitted without separate consent in text form by shopware. The usage of the software extensions is restricted to the customer’s main domain via which the majority of the customer’s business activities are conducted.

The customer shall be permitted to make copies of the software extensions referred to under 2.2 inasmuch as the respective copying is necessary with regard to the contractual usage. This includes in particular the installation of the software extensions on the server. Furthermore the customer may make a copy for back-up purposes. However, only one single backup copy may be made and kept, which must be marked as such. The customer may not make any further reproductions, including the printing of the program code.

The customer shall be obligated to prevent unauthorised access by third parties to those software extensions referred to under Section 2.2 or to the documentation by taking appropriate precautions. The original files and the back-up copies are to be kept in a place that is secured against unauthorised access by third parties. The attention of the customer’s employees is to be emphatically drawn to the need for adherence to the present contractual conditions of these terms of use as well as the provisions of and the copyright law.

The Customer's statutory rights under Sections 69d, 69e UrhG remain unaffected.

2.3. Third party open source software

The Shop Software contains also Open Source Software of third parties (hereinafter referred to as "OSS"). In deviation from these GTC, the customer receives exclusively those rights of use to this OSS which result from the licence conditions applicable to OSS. At the customer's request, shopware will inform the customer which OSS is contained in the Shop Software or software extensions under which licence conditions, if this is not already apparent from the document provided to the customer with the software or the documentation belonging to the shopsoftware.

2.4 Shopware Enterprise Edition

For the use of the "Shopware Enterprise Edition", the conclusion of a separate contract of use is required. The terms of use of the "Shopware Enterprise Edition" are regulated in the contract. In addition, the provisions of these GTC apply to all questions not regulated in this contract.

3. Patches and Updates

Patches are amendments to the Shop Software with the aim of resolving a specific problem. Updates are changes to the Shop Software that extend its functionality. Updates usually include patches. Patches and updates can also serve to adapt the Shop Software to changed legal requirements; however, subject to an express agreement with shopware in text form, the customer has no claim to this. 

3.1. Provision of patches and updates

Patches and updates will be made available to the customer by shopware through provision on a server accessible via the Internet. The customer will inform himself about existing patches and updates.

The installation of patches or updates and none as well as support and consulting services are not owed by shopware. Such services may be procured from shopware by way of separate agreements. shopware will provide patches and updates for the customer if they are ready for use and tested at shopware. The customer has no claim that patches or updates are provided on certain dates or within certain time periods. The provision of new generations of shop software (e.g. a Shopware 6 after a Shopware 5) is not covered by patches and updates, unless the contract with the customer or these General Terms and Conditions stipulate otherwise by way of exception.

3.2. Impact of patches and updates

shopware will make every effort to provide patches to correct serious bugs of the shopsoftware. Specific response or recovery times are not promised.

The Customer recognises that patches and updates may only be tested by shopware for standard installations. In particular, no tests may be performed for side effects that are caused by amendments to software extensions or the manual alteration of configuration files undertaken by way of circumventing those mechanisms provided by the Shop Software. The assurance that a certain patch or update will leave the functionality of the Shop Software or software extensions unchanged in every situation is expressly not given.

The Customer's claims arising from statutory liability for defects or guarantees remain unaffected.

3.3 Rights of use for patches and updates

With the installation of patches and/or updates, the Customer receives the same rights of use as for the Shop Software or software extension for which the patch or update has been installed.

4. Shopware Account

The customer, by way of the Shopware Account, shall be given the opportunity of managing all software extensions in connection with Shop Software and its customer data (managing of orders, amendments to addresses and methods of payment, checking the balance of its account, invoice downloads etc.) and of availing itself of support services offered by Shopware in accordance with Section 9.
With the creation of a Shopware Account the customer declares its consent to these GTC.

4.1. Registration of the customer

The use of the Shopware Account requires the registration of the Customer. shopware can refuse the registration of a Customer without giving reasons. Upon registration, the Customer assures that he is an entrepreneur, a person under public law or a person of a special fund under public law within the meaning of § 310 (1) BGB (German Civil Code).

The Customer undertakes to provide the information required for registration completely and truthfully. Registration in the name of third parties is not permitted. shopware is entitled to block the Customer's Shopware Account if the information provided is incomplete or untruthful and the Customer does not update the information immediately upon request by shopware. This does not apply if the customer is not responsible for the incorrect information.

4.2. Access to the Shopware Account

The Customer receives password-protected access to the Shopware Account via the internet. The password is assigned by the Customer and must be individual, sufficiently long (at least eight characters) and complex (capital letters, lower case letters, digits, special characters). The Customer is obliged to keep his access data secret and must protect them from misuse by third parties. In case of actual or suspected loss or misuse of the access data, the Customer must immediately inform shopware. shopware is then entitled to block access until the risk of misuse has been eliminated. The customer is liable for all consequences resulting from the misuse, unless the customer is not responsible for this.

5. Community Store for software providers

shopware offers the Customer the opportunity to use an electronic sales platform (hereinafter referred to as "Community Store") to offer plug-ins (including themes) developed and created in-house as software extensions for the Community Edition and proprietary edition of the shop software (hereinafter referred to as "On-prem Shop Software") for sale, rent or download free of charge. In this role, the Customer is hereinafter referred to as the "Software Provider".

The use of the Community Store necessarily requires a Shopware Account in accordance with Section 4 of these GTC.
For extensions with backend components for the shop software that are to be sold under a proprietary license, the separate prior purchase of a paid shopware SDK license by the software provider is mandatory. 

In case of extensions with backend components for the Shop Software, which are to be distributed under proprietary license, the separate prior purchase of a paid Shopware SDK license by the software provider is obligatory.

All further regulations for the use of the Community Store by the software provider are regulated in a separate contract. After the conclusion of this contract in text form, the software provider will be activated by shopware for the provision of software extensions.

6. Community Store for users

shopware offers the Customer the possibility to buy, rent or use free of charge software extensions for the On-prem Shop Software which were not developed and created by shopware itself via the Community Store. The Customer named in this context is hereinafter referred to as the "User". A software extension may be accompanied by a subscription that entitles the User to update to a new version of the software extension under the terms of that subscription (the "Update").

The use of the Community Store requires a Shopware Account according to section 2.3.

shopware provides the Community Store for the user under the following regulations.

6.1. Contract on software extensions

The contract for the purchase of software extensions in the Community Store, possibly including a subscription, is concluded between shopware and the User.

6.2 Rent of software extensions

Alternatively to the purchase for some software extensions in the Community Store also rent is possible. A rental agreement for a software extension in the Community Store comes into effect when the software extension is installed. The rental contract runs for an indefinite period of time and for at least one month of use, starting on the first day of use. It can be terminated at any time at the end of the current calendar day. Already started months of use will always be invoiced in full. Any rent already paid or accrued will not be credited for the current month of use.

The right to extraordinary termination for good cause remains unaffected. An important reason exists for shopware in particular if the Customer culpably and seriously violates the terms of use or property rights of the right holder valid for the software extension, mentioned in the Community Store and agreed with the Customer.

If the software extension is not uninstalled and deleted after the end of the term of the contract (see point 6.4), but continues to be used by the customer for at least two weeks, the rental is extended for an indefinite period. This does not affect shopware's right to request the customer to uninstall and delete the software extension or to terminate the contract itself.

6.3. Obligations of shopware for software enhancements

Software extensions for the On-prem Shop Software are installed and put into operation by the User. The User is only entitled to an update if he has rented the software extension or purchased a subscription. Support is provided exclusively, if offered, by the software provider, in no case by shopware. 

shopware is not obliged to check the software extensions offered in the Community Store for their functionality, properties described in the offer or infringements of third party rights. Questions of compatibility must be clarified directly with the software provider prior to the purchase by the User.
Software enhancements are provided in the Community Store, including installation instructions. Operating instructions (user documentation in text form or online help) are only owed if the intended use is not possible without them.  No other instructions or documentation are owed.

If shopware itself is the software provider, support for the software extension shall only be provided under a service contract to be concluded separately in accordance with Section 9.3. This service agreement also includes the right to receive patches and updates of software extensions provided with proprietary editions of the Shop Software (hereinafter referred to as "Advanced Features"). Users of the Community Edition are therefore not entitled to receive support, patches or updates from shopware, even for paid software extensions from the Community Store.

The User's claims arising from statutory liability for defects or guarantees remain unaffected.

6.4 Use of software extensions for demonstration and test purposes

If software extensions for the On-prem Shop Software are provided to the customer for demonstration and test purposes, the contract for the purchase or rental of the software extension is concluded as described in section 6.1 or section 6.2. In this case, the first month of use shall be deemed to be the demonstration and test phase, during which the customer may withdraw from the contract (purchase) or terminate it (lease) at any time without notice. In this case, no costs are incurred by the customer for use during the demonstration and test phase.
If the customer does not wish to continue using a software extension for demonstration and test purposes after the end of the demonstration and test phase (see item 6.2.3) or to terminate the rental of a software extension, the customer is obligated to completely uninstall the software extension and to delete it including the documentation and all copies or to return it to shopware. Upon request by shopware, the customer confirms the complete uninstallation and deletion in text form.

7. License checks for shop software and software extensions

shopware uses functions in the shop software and, if applicable, the software extensions with which the customer's authorization to use the shop software and software extensions can be checked.
For this purpose, information on the use of shop software and software enhancements by the customer as well as on the domain(s) used by the customer for this purpose is transferred to shopware and compared with the data available there on the customer. If shopware determines that the shop software or a software extension is used by the customer in a different manner than registered with shopware, shopware is entitled to (a) deactivate the use of the shop software or software extension by means of remote access until clarification and, if applicable, proper licensing, and (b) to pass on the data to the manufacturer of the affected software extension.
Deviating from this, the following applies to updates of software extensions and advanced features: If Updates are used without a Subscription (in the case of Software Extensions) or Service Agreement (in the case of Advanced Features), a Subscription (in the case of Software Extensions) or Service Agreement (in the case of Advanced Features) is concluded upon installation of the Update by the User.

8. Shopware as a Service 

If required, shopware provides the Customer with the Shop Software in the cloud as a solution hosted by shopware (hereinafter referred to as "Shopware as a Service" or "SaaS"). The use of SaaS requires a shopware account in accordance with section 4. The following terms of use apply with priority for the use of SaaS.

8.1. Description of Services

shopware provides the Customer with SaaS including the associated documentation and with the functionalities and service levels described in the service description in various plans. The individual plans can be viewed at any time under https://www.shopware.com/en/plans/. The user can switch between the offered plans on a monthly basis. 

shopware strives to maintain SaaS permanently (24 hours a day, 365 days a year). The infrastructure is designed for 99% availability p.a. However, routine, necessary and planned maintenance and repair measures (no more than a total of eight hours per month) are excluded. Wherever possible, necessary maintenance and repair measures will be announced in good time at https://status.shopware.store. SaaS is not guaranteed to be available at all times. 

With SaaS, shopware relies on the principle of "self-service" to make it as easy as possible for customers to use SaaS. Supplementary support services are therefore available to assist the Customer in accordance with the service description. The scope of support depends on the plan selected in each case; this may also include individual support.

8.2. Use of SaaS

Part of SaaS can be the interaction with cloud solutions or applications of third parties (hereinafter referred to as "third-party products"). It is the Customer's responsibility to create the necessary conditions for using the third-party products together with SaaS. This applies in particular to the conclusion of contracts with the providers of the third-party products and the use or installation of the third-party products in accordance with the contracts concluded with the providers of the third-party products. shopware is not involved in these contracts and is not responsible for the services owed by the providers of the third-party products. 
Access to SaaS is via the Internet. The customer is responsible for providing Internet access and the hardware (e.g. router, smart devices) or software (e.g. browser) customary in the market that may be required for access to SaaS at the customer's site. SaaS is provided to the Customer exclusively as a solution that can be used in the browser or controlled via APIs.
shopware strives to maintain the availability of the SaaS offer permanently (24 hours a day, 365 days a year). The infrastructure is designed for 99% availability p.a. However, routine, necessary and planned maintenance and repair measures are excluded. Wherever possible, necessary maintenance and repair work will be announced. Availability at any time is expressly not guaranteed and is not owed.
Apart from this, the Customer has no claim to a specific design or equipment of SaaS. Properties of SaaS are only guaranteed if shopware expressly designates these to the Customer in text form as guaranteed properties.

8.3. Trial Phase for Shopware as a Service

shopware provides SaaS to the customer as a trial version until the customer has decided on a plan. In the trial phase, the customer can use the functionalities and properties of SaaS activated for the trial version by shopware at its own reasonable discretion, but cannot use the online shop productively. This also allows for testing functionalities and features that are not available in every plan for SaaS or that can be used free of charge. Productive use of SaaS is only possible when a plan is booked. Shopware is entitled to terminate the trial phase and delete the shop after one month of customer inactivity.

8.4. Changes to Shopware as a Service

shopware expressly reserves the right to change or discontinue SaaS in whole or in part at any time at its own reasonable discretion, taking into account the interests of the customer. This only applies, however, if this does not affect services that relate to obligations of the parties, the fulfillment of which makes the use of SaaS possible in the first place and on the fulfillment of which the other party regularly relies or may rely (hereinafter referred to as "essential contractual obligation"). shopware will inform the customer of such changes in text form in advance and in good time.

8.5. Extensions for shopware as a Service

shopware provides the Customer with various extensions as applications for SaaS (hereinafter referred to as "Apps"). shopware provides the Apps with the system requirements, functionalities and interfaces as described in the shop software, in a service description and in these GTC upon conclusion of the contract with the Customer.
Should the Customer switch from SaaS to the Community Edition or a proprietary edition of the shop software, he can continue to use his apps. This may require a separate installation of the apps. Conversely, however, the use of plug-ins for SaaS is not possible, as plug-ins are not compatible with SaaS.
shopware does not owe support services for apps. The user has no claim to apps being made available on specific dates or within specific periods.
If the customer develops his or her own apps for SaaS, either by himself or through third parties, he or she is responsible for their functionality and any errors or malfunctions that may be caused in SaaS. This does not apply if shopware is solely or predominantly responsible for the errors or disruptions.

8.6. Terms of Use for Shopware as a Service

The user receives a simple right of use for SaaS and any Apps for his or her own business purposes for the intended use of SaaS, limited to the term of the contract, without geographical restrictions and objectively limited to the use of the services provided with SaaS. 
The Costumer shall not use SaaS or the on-prem shop software to directly or indirectly develop or improve a comparable service or product himself/herself or through third parties.

8.7. Obligations of the Customer in the case of Shopware as a Service

The Costumer must observe the applicable law, protect the rights of third parties and take reasonable precautions against the loss of his or her content in SaaS. The Customer shall not use configuration options in SaaS that are not documented but are accessible to the Customer. The Customer is responsible for compliance with the statutory provisions due to the content placed in SaaS by the user. 
If the customer does not fulfill his or her obligations despite being requested to do so by shopware and granted a reasonable grace period, shopware is entitled to terminate the contract for good cause.

8.8. Liability for contents and links

With SaaS, shopware merely provides the technical and organizational platform for the content placed in SaaS by the customer. This content is external content for shopware. If, in exceptional cases, shopware provides its own content via SaaS, this is expressly identified as such.
External content is merely stored by shopware and, if necessary, automatically processed in connection with the services available in SaaS. shopware has no knowledge of external content. A selection of external content or other control by shopware does not take place. Likewise, shopware does not supervise SaaS customers or issue instructions to them. shopware does not adopt third-party content as its own by providing SaaS. The Customer is solely responsible for external content. 
Via links or functionalities in SaaS, websites or third-party products that are not operated by shopware can be accessed or integrated. Such links or functionalities are clearly marked, recognizable by a change in the address line of the browser or a change in the user interface. shopware is not responsible for such websites and third-party products; Clause 17 remains unaffected.

8.9. Remuneration, term and termination for shopware as a service

The remuneration for SaaS is based on the current price overview. The basic remuneration is invoiced monthly in advance. In order to determine the sales-related remuneration to be paid by the customer to shopware as part of the remuneration, shopware is entitled to collect the customer's usage volume relevant for the determination of commissions once a day and to process it for settlement purposes. Settlement is carried out on a monthly basis.
The contract begins with the provision of SaaS on the customer's order and runs for an indefinite period of time. It can be terminated at any time at the end of the current month of use. A request for deletion of the online shop is also deemed to be a termination. Any remuneration already accrued for the current month of use must nevertheless be paid and will not be (proportionately) reimbursed. 
The right of both parties to extraordinary termination of the contract for good cause remains unaffected. For shopware, good cause for termination exists in particular if (a) shopware is no longer able to provide the services or operation of SaaS in accordance with the recognized requirements of data protection or information security, in particular as a result of changes in the law or due to lack of profitability, or (b) a subcontractor of shopware terminates the provision of the preliminary services required for the provision of SaaS in accordance with the contract through no fault of shopware, so that it is impossible or unreasonable for shopware to comply with the regular period of notice to the user. 
Upon termination of the agreement, shopware will block the customer's access to SaaS. shopware will, at its own reasonable discretion and upon the customer's request, provide the customer with its content from SaaS as an export within one month after the end of the agreement or provide the customer with the opportunity to export its content from SaaS. Thereafter, shopware is entitled to completely delete the access as well as all posted content and user IDs of the customer. Other support services in connection with the termination of the contract will be provided by shopware exclusively according to a separate agreement. 

8.10. Rights to aggregated data and Customer feedback

shopware shall receive from the Customer any feedback from the Customer in connection with the Customer's use of SaaS. shopware shall be granted exclusive rights of use, unlimited in terms of space, time and content, for all known and unknown types of exploitation. shopware does not owe any remuneration for these transfers of rights; §§ 32a, 32c UrhG remain unaffected. The Customer ensures that he is also entitled to this transfer of rights for hisr employees and any other users of SaaS at the Customer's premises.
shopware acquires the exclusive exploitation and usage rights to the work results arising from the use of SaaS or otherwise in connection with SaaS, which do not allow any conclusions to be drawn about the Customer or his content, as well as to other information concerning the use of SaaS that is not a trade secret. shopware is not subject to any restrictions whatsoever in this respect due to the commercial use of such work results for its own purposes and for the purposes of third parties (e.g. benchmarking, quality improvement). The provisions on data protection and confidentiality remain unaffected.

8.11. Order Processing

Upon conclusion of the contract, the contract for order processing attached as an attachment becomes effective for SaaS in accordance with Art. 28 DS-GVO. shopware will provide the Customer at any time upon request with the technical and organizational measures taken for SaaS in text form.
 

9. Training and other services

This clause shall apply to any service contracts concluded separately with the customer for training and other services (hereinafter referred to as "service contracts"). The employees involved in the performance of the service are selected by shopware. The customer has no claim to the performance of services by specific employees.
shopware determines the manner in which services are provided. If results of the service are to be released to the customer, only the released results are binding.

9.1. Knowledge collection

Shopware shall make online training courses, documentation, online manuals and self-compiled tutorials available to the Customer in a compendium of knowledge free of charge. There is no entitlement to provision. shopware can reduce, restructure or completely discontinue the knowledge collection at any time.

9.2. Forum

shopware shall make a forum available to the Customer free of charge in which he or she shall be able to exchange opinions with other customers. A prerequisite for the active usage of this forum is a Shopware Account in accordance with Section 4. There is no entitlement to provision. shopware can reduce, restructure or completely discontinue the forum at any time.

The Customer is responsible for the content it posts on the forum. For shopware, the content posted by the Customer on the forum is third-party content which shopware does not make its own. As a technical service provider which only provides the forum for its customers, shopware is not responsible for this third-party content.

If shopware becomes aware of clear legal infringements in the forum, shopware shall delete these posts or otherwise restrict access. The Customer shall indemnify shopware against all third-party claims asserted against shopware on account of the content posted by the Customer in the forum. This also includes the reasonable and customary costs of legal defence arising from the defence against claims of third parties.

9.3. Term and further specifications

The services upon which the service contracts offered by shopware are based can be viewed here: https://www.shopware.com/en/pricing/. For SaaS, the respective services according to section 8.1 are part of the plan booked by the Customer.

The term of the service contracts is 12 or 24 months and is automatically extended by a further 12 or 24 months, depending on the term concluded at the beginning. The service contract can be cancelled up to one day before the end of the contract period via the shopware account or by sending an e-mail to sales@shopware.com.

shopware shall provide services for the maintenance contract only for the current software generation and for Shopware versions that are at most two versions behind (including both minor and major updates). The Customer must therefore keep the Shop Software and any software extensions up to date, and in particular install any provided updates and upgrades and/or purchase new software generations to the extent that their acquisition is not governed by the maintenance contract. Failing this, the Customer cannot utilise the services of the maintenance contract until the software is updated. With SaaS, shopware is responsible for updating the Shop Software and carries this out independently within the framework of the booked plan.

Should the service not be performed in a manner conforming to the contract and should shopware bear the responsibility for this, shopware shall be obligated to perform the service in a manner conforming to the contract within a reasonable period of time without any extra costs for the Customer. A precondition for this is a complaint on the part of the Customer that is to be lodged immediately and no later than within 2 weeks of learning of the defect. Other rights of the Customer shall remain unaffected.

If a service contract is terminated, shopware shall be eligible for payment for the services performed up until the time when the termination becomes effective.

The right to extraordinary termination for good cause shall remain unaffected.

9.4. Trainings from shopware

shopware shall offer the Customer on-site and online training sessions on handling the Shop Software or software extensions. The following regulations apply to on-site training sessions.

9.4.1. Live trainings from shopware

The following regulations apply to the live training courses:

Registrations for on-site training sessions can be made by phone, in text form or online. The registration shall be binding at the latest when confirmed by shopware. The places available shall be allocated according to the order in which the registrations are received.

The training content and applicable training fees described on the shopware website at the time of registration for the on-site training session concerned shall apply. The merely temporary attendance at a training session shall not justify a reduction of the on-site training fees.

Should the Customer cancel its registration up to ten days before the on-site training begins, shopware shall refund the training fees in full. Otherwise, shopware shall refund 50% of the training fees. It is possible for the Customer to name a stand-in participant.

shopware reserves the right to cancel training without giving reasons up to ten days before the start of on-site training. After this period, cancellations are only possible for good cause, particularly in the event of trainer illness or a disturbance according to section 11. In the event of cancellation, any training fees that have already been paid shall be refunded in full. Other claims by the Customer shall not exist. shopware may postpone or delay on-site training sessions up to one month before they begin. shopware shall inform the Customer of this without delay. The customer's registration remains valid unless the customer informs us in writing within two weeks that he does not wish to participate in the live training due to the postponement or relocation. In this case, shopware shall refund the training price. Other claims by the Customer shall not exist.

shopware reserves for itself all rights to the training documents. In particular duplication, spreading or public accessibility of the training documents are not permissible without previous, express agreement of shopware in text form.

The precondition for the successful participation in the respective training session and – inasmuch as the training booked include this – the issuing of a certificate, are the conditions cited in the respective description of the training session.

9.4.2. Online trainings from shopware

In addition to on-site training, shopware also offers its Customers online training courses and online certification. The online training courses also cover the use of Shop Software and possible software enhancements. The online training courses are offered via the e-learning platform Udemy. Registration takes place online, Udemy's terms of use must be accepted.

In addition, shopware offers its Customers the opportunity to obtain online certification. The registration for this takes place online and is binding upon receiving confirmation from shopware.

The necessary knowledge and skills listed on the online training page are a prerequisite for certification as well as the prices listed there.

Online certification can be cancelled up to 30 days after registration, provided the Customer has not yet started the certification process. In this case shopware will refund the full price of the certification.

shopware reserves all rights to the training documents of the online training courses as well as to the documents and test questions of the online certifications. In particular duplication, spreading or public accessibility of the training documents are not permissible without previous, express agreement of shopware in text form.

10. Remuneration and Terms of Payment

Unless otherwise specified in these terms and conditions or the contract, the following applies:

Prices are valid for one month from the calendar date of the offer. Remuneration is generally net prices plus statutory value added tax. shopware can invoice monthly, for services to be rendered permanently in advance at the beginning of each month of use.

All invoices are due immediately upon receipt and must be paid within one week at the latest without deduction. Discount is not granted. In the event of default by the Customer, the statutory default interest shall be due. Payments by the Customer have only been made when shopware can dispose of the payment amount without reservation.

Payment on a time and material basis shall be charged at the prices of the shopware generally valid at the time the contract is concluded after the services have been rendered. Invoicing on a time and material basis is based on the submission of suitable activity reports. The customer may object to the provisions made there in text form within two weeks. After the expiry of these two weeks without objection by the Customer, the activity records shall be deemed accepted.

Travel times, travel costs and accommodation expenses are calculated depending on the location of the shopware. Travel times and costs arise between the location of the shopware and the respective place of use of the Customer or between different places of use of the Customer.

Unless otherwise agreed, travel times, travel expenses, ancillary costs and other expenses shall be reimbursed in the actual amount incurred, at least in accordance with the flat-rate tax rates. Travel time is considered working time.

A remuneration agreed in the contract on a time and material basis is the remuneration for the time required for the contractual services. The cost of materials shall be remunerated separately. Waiting times and standby times for which the Customer is responsible (e.g. on site at the Customer's premises as expressly requested by the Customer) shall be remunerated in the same way as working hours.

The Customer shall only be entitled to set-off if the counterclaims are legally established, accepted by shopware or undisputed; this shall not apply if the Customer's claims for defects under the same contract are concerned. The Customer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. 

11. Deadlines for Performance, Term

Dates agreed with the Customer shall only be binding if shopware has expressly confirmed them as binding in writing. Fixed dates are only those dates which have been expressly confirmed to the Customer in text form as fixed dates.

As far as reasonable for the Customer, shopware is entitled to partial performance.

If a cause for which shopware is not responsible, including strikes, lock-outs and forces of nature such as earthquakes, floods, fires, storms a pandemic or delays (hereinafter referred to as "disruption"), the dates shall be postponed by the duration of the disruption, if necessary including an appropriate restart phase. shopware shall inform the Customer immediately of any disruption and its probable duration.

If the expenditure increases due to a fault, shopware can also demand compensation for the additional expenditure, unless the Customer is also not responsible for the fault.

If the Customer can withdraw from the contract due to improper performance by shopware and/or claim damages instead of performance or assert such claims, the customer will declare at the request of shopware within a reasonable period of time in text form whether he asserts these rights or wishes to continue to provide the service. In the event of withdrawal, the Customer shall reimburse shopware the value of previously existing usage options; the same shall apply to deterioration due to intended use.

If a contract is concluded for an indefinite period of time, it may be terminated at the end of a calendar year with a notice period of three months, unless otherwise stipulated in these General Terms and Conditions or in the contract. For the first time, this termination is possible at the end of the first full calendar year following the year in which the contract was concluded. Termination is excluded during an agreed minimum term.

The right to extraordinary termination for good cause remains unaffected. Notices of termination require the text form.

12. Cooperation Duties on the Part of the Customer

The Customer shall provide assistance and supplies as an ancillary contractual service.

The Customer will support shopware and create all necessary, reasonable and possible conditions for shopware to provide the services in accordance with the contract.

For this purpose, the Customer shall in particular provide all necessary information without being asked, e.g. access data to servers, providers, Internet shops, administration areas. The Customer shall also ensure that expert personnel are available to support the shopware. The customer is responsible for the proper and at least daily data backup, in particular before installation of the shop software, software extensions as well as patches and updates.

The Customer shall report malfunctions, including defects, in comprehensible and detailed form in text form, stating all information relevant for the detection and analysis of the malfunction. In particular, the work steps that led to the occurrence of the fault, the frequency of occurrence and the effects of the fault must be specified.

The Customer must follow the instructions given by shopware when describing, limiting, detecting and reporting errors.

During the execution of the support services, the Customer is personally present or delegates competent employees who are authorized to judge and decide on errors, functional enhancements, function reductions as well as changes of the Shop Software structure. If necessary, other work on the system environment must be stopped during the work.

The Customer shall name a responsible contact person. The latter may make binding decisions for the Customer or bring about such decisions without delay and is entitled to make legally binding declarations in connection with the contracts concluded by the parties. The contact person is available to shopware for necessary information.

Unless otherwise agreed, the Customer shall additionally store all documents, information and data handed over by shopware and required for the provision of services by shopware in such a way that these can be reconstructed in the event of damage or loss of data carriers.

The Customer undertakes to take appropriate technical and organisational measures to ensure that the intended, legal and contractual use of shop software and software extensions is ensured.

shopware can demand additional reimbursement of your expenses if

a) shopware acts on the basis of a report without any malfunction or defect, unless the Customer is not responsible for the unfounded report, or
b) additional expenses are incurred due to non-contractual fulfilment of the customer's obligations, unless the Customer is not responsible for this.

The Customer shall ensure that the contact person designated by him provides shopware with all documents, information and data necessary for the provision of the service in a complete, correct, timely and free of charge, unless owed by shopware. Beyond that the Customer provides for their update. shopware may assume the completeness and correctness of these documents, information and data, unless these are obviously recognizably incomplete or incorrect for shopware.

The Customer shall carefully store the software and all associated access data and take all measures necessary and reasonable in accordance with the current state of the art to prevent misuse. In particular, the Customer shall ensure that any unauthorized access to administration access is excluded.

The Customer is not permitted to change or remove any copyright notices, proprietary notices or other shopware characteristics without authorization.

The Customer undertakes to refrain from all measures which endanger or interfere with the functioning of Shop Software, SaaS or software extensions, as well as not to access data to which he is not entitled. Furthermore, he must ensure that the contents and other data provided by him are not afflicted with viruses, worms or Trojans.

The Customer undertakes to compensate shopware for all damages resulting from the non-observance of these obligations and, in addition, to indemnify shopware from all claims of third parties, including attorneys' and court costs, which they assert against shopware due to the non-observance of these obligations by the User. This does not apply if the Customer is not responsible for the breach of duty.

13. Legally Compliant Use of Shop Software and SaaS

When using Shop Software and SaaS, the Customer must observe the applicable law and protect the rights of third parties.
The Customer is in particular prohibited from doing so,

  • violate the property rights of third parties such as trademarks, copyrights and rights to a name,
  • to distribute or otherwise disseminate insulting, defamatory, pornographic, youth-endangering, racist, seditionary or otherwise criminally relevant content via the shop software and SaaS
  • to unreasonably harass other customers and/or third parties in disregard of data protection or competition law requirements, for example through unsolicited advertising (spam) as well as offensive or sexually oriented communication using the shop software and SaaS,
  • to use mechanisms, software and/or scripts that go beyond the functionalities and interfaces provided with the shop software and SaaS, in particular if this blocks, modifies, copies and/or overwrites shopware services and these services are required for the contractual use of shop software or SaaS, and
  • to attempt to compromise the shop software, SaaS or the security systems used by shopware or the contents retrievable with the shop software and SaaS by altering data (§ 303a German Criminal Code), computer sabotage (§ 303b German Criminal Code), falsification of evidentially relevant data (§ 269, 270 German Criminal Code), Suppression of evidentially relevant data (§ 274 StGB), computer fraud (§ 263a StGB), spying out data (§ 202a StGB), interception of data (§ 202b StGB) or other criminal offences, whereby corresponding attempts by shopware will be reported to the responsible public prosecutor's office.

Material breaches or breaches that are repeated despite warnings entitle Shopware to extraordinary termination of license, maintenance, support and rental agreements for good cause, unless the Customer is not responsible for the breach.
The Customer's legal rights under §§ 69d, 69e UrhG (German Copyright Act) shall remain unaffected; the exercise of these rights shall not constitute a breach of this clause.

14. Cession of Rights

The Customer may assign rights from the contract to third parties only with the consent of shopware. shopware will only refuse the consent for good cause.

shopware is entitled to transfer the contracts concluded with the Customer in whole or in part or only because of individual rights from these contracts to third parties. If the third party is a company affiliated with shopware within the meaning of §§ 15 ff. AktG, the transfer is also effective without the consent of the Customer. Otherwise shopware will inform the customer about the intended transfer in time in text form. If the Customer objects to the transfer, it does not become effective. In this case shopware is entitled to terminate the affected contract for good cause at the time of the intended transfer.

shopware is further entitled to have all services provided to the Customer fulfilled by subcontractors. The contract between the Customer and shopware remains unaffected by this.

15. Reservation of Proprietary Rights

shopware retains the ownership of delivered goods until full payment of the owed remuneration and fulfilment of all claims from the business relationship with the Customer.

The Customer shall inform shopware immediately in text form if third parties assert rights to the goods delivered under retention of title, e.g. in the event of seizure or insolvency of the Customer. The Customer shall immediately inform the third party of the retention of title in favour of shopware.

16. Economic Incapacity

In the event of the Customer being economically unable to fulfil their obligations towards shopware, shopware may terminate with immediate effect existing exchange agreements with the customer by way of withdrawal and long-term commitments by way of cancellation, even if the Customer should file an insolvency application. § 321 BGB and § 112 InsO (Insolvency Act) shall not be affected by this. The Customer will inform shopware early in text form about an imminent insolvency.

17. Liability for defects (warranty)

shopware warrants in case of material defects by subsequent performance. For this purpose shopware leaves a new, defect-free software version to the Customer at his discretion or removes the defect. 

The period of limitation for claims for defects is one year and begins with handover. In the event of intent, gross negligence, malice, personal injury, defects of title, guarantees or claims under the Product Liability Act, the statutory limitation periods shall apply.

Claims for defects of the Customer are excluded if the Customer uses the Shop Software, SaaS or software extensions for a purpose other than that stipulated in the contract or has made changes or extensions to the shop software or software extensions, in particular to the source code, and the improper use or modification is the cause for the defect that has occurred. The initial, no-fault liability for defects in the rental of Shop Software, SaaS and software extensions is also excluded.

If the Customer claims a defect in a software extension purchased in the Community Store or in the Shop Software and not manufactured by shopware, the Customer has to assert claims for defects primarily against the manufacturer of the software extension. For this purpose shopware assigns all own warranty claims against the manufacturer to the Customer.

Notwithstanding this, shopware is obliged to take the following measures at all times:

shopware will provide a version of the software extension available from the manufacturer during the warranty period to remedy the defect. If such a version is not available, shopware will offer a workaround solution. If a workaround solution is also not possible or reasonable, shopware will support the manufacturer in providing a version of the software extension that remedies the defect as soon as possible. shopware will provide information on the measures taken in this regard at the Customer's request. A workaround solution is particularly unreasonable for shopware if its provision requires an intervention in the source code/object code of the software extension.

The Customer shall be obliged to install/operate a version of the software extension that remedies the defect at his own expense. This only does not apply if this is not possible or reasonable for the Customer, because the new version differs substantially from the previous version or because the Customer incurs considerable expense through installation/commissioning.
Guarantees require the express confirmation by shopware in text form.

18. Liability

shopware is liable for damages from injury to life, body or health as well as in case of intent and gross negligence without limitation. In all other respects, the liability is limited to the violation of "essential contractual obligations" in the case of paid performance of deliveries or services and in the case of simple negligence; these are all obligations whose performance enables the customer to make use of the services owed by shopware in the first place and on whose compliance the customer regularly trusts or may trust. The liability in case of violation of an essential contractual obligation is, however, limited to the foreseeable damage typical for the contract. The parties agree that twice the annual remuneration of the customer, but at least EUR 50,000.00 per calendar year, corresponds to the foreseeable damage typical of the contract and, in addition, liability for simple negligence only exists if the parties have made a separate agreement in text form. In the case of services free of charge, including the provision of free test installations or demonstration versions, liability in the case of simple negligence is otherwise excluded.

shopware is only liable for the loss of data in accordance with the above paragraphs if such a loss would not have been avoided by the data backup measures to be taken but not taken by the Customer. The liability does not extend to impairments of the contractual use of the services provided by shopware which have been caused by an improper or faulty claim by the Customer without the cooperation of shopware.

The above limitations of liability shall also apply mutatis mutandis in favour of shopware's vicarious agents and organs.

19. Protected Third Party Rights

shopware exempts the Customer from claims of third parties arising from the infringement of industrial property rights (in particular trademarks, designs, patents, copyrights) through Shop Software, SaaS or software extensions purchased from shopware.

The Customer shall not make any statements to the third party regarding the infringement of industrial property rights without express consent in text form, in particular shall not acknowledge any rights or facts and shall otherwise assume liability.

shopware is entitled to either (a) modify the Shop Software, SaaS or software extension at its own expense in such a way that the infringement of property rights no longer applies, or (b) acquire the necessary rights from the third party for passing on to the Customer. If the infringement of industrial property rights can be remedied by installing a patch or update, the customer is obliged to do so, unless this is not possible or reasonable for the Customer because the new version differs significantly from the previous version or considerable effort is incurred by the Customer due to installation/commissioning. 

The Customer shall inform shopware immediately in text form if he is informed of the infringement of property rights by the Shop Software, SaaS or a software extension.

20. IT Security

The Customer is responsible for IT security measures outside of SaaS.

21. Export control, cross-border deliveries

The Customer shall observe upon their own responsibility those import and export regulations applicable to the deliveries or services, in particular those of the USA.

In the case of cross-border deliveries or services the Customer shall bear any customs dues, fees, taxes or other charges incurred. The Customer shall handle statutory or governmental procedures in connection with cross-border deliveries or services on their own responsibility.

22. Data Protection and secrecy

The processing of individual-related data takes place exclusively in accordance with the provisions of applicable data protection law. The data protection declaration of shopware at https://en.shopware.com/privacy/ applies.

Both contracting parties undertake to comply with the applicable data protection regulations. In particular, they will oblige their employees to maintain the confidentiality of personal data.
shopware reserves the right of ownership and copyright to illustrations, drawings, calculations and other documents. This also applies to written documents that shopware designates as "business secrets" or "confidential information". Such documents may only be passed on to third parties in text form with the prior, explicit consent of shopware.

23. Choice of Law

All legal relationships arising from this contractual relationship shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws provisions; Art. 3 para. 3, para. 4 Rome I Regulation shall remain unaffected. 

24. Court of Jurisdiction

If the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all legal disputes arising from this contractual relationship and within the framework of the execution of this contractual relationship is the place of business of shopware. This shall not apply if the law already provides for a different exclusive place of jurisdiction.

25. Right of Modification

For new contracts, the current General Terms and Conditions shall apply in each case.

shopware reserves the right to change these terms and conditions for current contracts. Such changes become effective if the customer does not object to the change within one month after receipt of a change notice in text form and shopware has informed the customer in the change notice of the right of objection and the period applicable thereto. If the customer objects to the amendment in text form, the previous GTC shall continue to apply. In this case, the provider is entitled to terminate the affected contract within two weeks after receipt of the objection for good cause. Excluded from this reservation of modification are such changes which refer to essential contractual obligations of one of the parties.

26. Form, Storage of Customer Data, Partial Invalidity

All orders and orders require the (order) confirmation by shopware in text form.

Verbal side agreements have not been made. Supplements or changes require the text form. This also applies to the cancellation of the text form. The priority of individual agreements of the contracting parties remains unaffected by this.

The invalidity of individual provisions shall not affect the validity of the remaining provisions. In this case the contracting parties will make a new effective provision which comes closest to the ineffective provision in economic terms. This applies accordingly in the event of a gap in the contract not foreseen by the contracting parties.

 

***
 

Appendix 1: Contract for order processing in SaaS

1. Order and specifications for processing

This contract on order processing (hereinafter referred to as "GCU") specifies for all processing operations the data protection rights and obligations of the parties, which result from the contracts already existing or to be concluded in the future between the parties (hereinafter referred to as "main contract"), under which personal data is processed by shopware (hereinafter referred to as "Provider") for the customer (hereinafter referred to as "Customer").
These GCU with all its components shall apply if the Customer has obliged the Provider to process personal data (hereinafter referred to as "Data") on behalf of the Customer pursuant to Art. 28 DS-GVO. These GCU form the framework for a large number of different order processing procedures. In the event of any contradictions, the provisions of these GCU with all its constituent parts shall take precedence over the provisions of the associated main contract.
The specific data protection provisions applicable to individual processing operations (hereinafter referred to as "Specifications for commissioned processing in SaaS") are set out in appendices to the GCU (hereinafter referred to as "Appendices") before processing commences. These are in particular the "Specifications for order processing of shopware" with regard to the object and duration as well as the type and purpose of processing, the categories of data and the categories of data subjects as well as the "Technical and organisational measures in accordance with Art. 32 DS-GVO" with regard to technical and organisational measures (hereinafter "TOM").
The Appendices are part of the AVV. In the event of any contradictions, the Appendices take precedence over the more general provisions in the GCU. Where reference is made to the GCU in the following or in the Appendices, this refers to the GCU with all its components.

2. Responsibility and processing on instruction

Within the scope of these GCU, the Customer is solely responsible for compliance with the applicable legal provisions, in particular for the lawfulness of disclosure to the Provider and for the lawfulness of the processing ("responsible party" pursuant to Art. 4 No. 7 DS-GVO).
The Provider acts solely in accordance with instructions with regard to the processing of the data, unless there is an exceptional case in accordance with Art. 28 (3) lit. a) DS-GVO (other legal processing obligation). Oral instructions must be confirmed immediately in text form. 
The Provider corrects or deletes the contractual data or restricts its processing (hereinafter referred to as "blocking"), if the Customer instructs him to do so and this is otherwise covered by the scope of the instructions.
The Provider shall inform the Customer immediately if he/she believes that an instruction violates applicable provisions on data protection or these GCU. The Provider may suspend the implementation of the instruction until it has been confirmed or amended by the Customer in text form. The Provider may refuse to carry out instructions that are obviously contrary to data protection law.
The Provider guarantees that the persons authorised to process the data (a) are aware of the Customer's instructions and comply with them, and (b) have undertaken to maintain confidentiality or are subject to an appropriate statutory duty of secrecy. The obligation of confidentiality and secrecy shall continue to apply after the processing has been completed.

3. Security of the processing

The parties agree on TOM in accordance with Art. 32 DS-GVO for the appropriate protection of data. The Provider reserves the right to make changes to the TOM, although it must be ensured that the contractually agreed level of protection is not undercut overall. The Customer must be notified of any significant changes in text form.

4. Notification in the event of breaches of data protection and processing errors

The Provider shall inform the Customer without delay if it becomes aware of violations of the protection of the data entrusted to it by the Customer within the meaning of Art. 4 No. 12 DS-GVO in its organisational area or if there is a concrete suspicion of such a violation of data protection on the part of the provider.
If the Customer discovers errors in processing, he must inform the Provider immediately.
The Provider shall immediately take the necessary measures to remedy the breach of data protection or the errors as well as to mitigate possible adverse consequences, in particular for the persons concerned. In this regard, he shall consult with the Customer.
Oral information must be submitted in text form without delay.

5. Transfer of data to a recipient in a third country 

The transfer of data to a recipient in a third country outside the EU and EEA is subject to compliance with the data protection provisions set out in Art. 44 et seq. DS-GVO is permissible.

6. Subcontracting other processors

The Provider may have all or part of the processing of personal data carried out by other processors (hereinafter referred to as 'subcontractors').
The Provider shall inform the Customer in text form in good time in advance of the assignment of subcontractors or changes in subcontracting. The Customer may object to the subcontracting in text form within four weeks of becoming aware of the subcontracting, if there is good cause to do so. Good cause shall be deemed to exist in particular if there is reasonable cause to doubt that the subcontractor will provide the agreed service in accordance with the applicable statutory provisions on data protection or in accordance with these GCU. In the event of a justified objection by the Customer, the Customer shall grant the Provider a reasonable period of time to replace the subcontractor affected by the objection with another subcontractor. If this is not possible for the Provider or cannot reasonably be expected of the Customer, the respective party shall be entitled to terminate the main contract for good cause.
The Provider shall agree with the sub-contractor on the content of the provisions of these GCU with the same content. In particular, the TOM to be agreed with the subcontractor must provide an equivalent level of protection.
No subcontracting within the meaning of this provision shall be deemed to be services which the Provider makes use of as a purely ancillary service to support its business activities outside the processing of orders. However, the Provider is obliged to take appropriate precautions to ensure data protection for such ancillary services as well.

7. Rights of affected persons and support of the Customer

If a person concerned makes claims under Chapter III of the DS-GVO against the Provider, the Provider shall inform the Customer thereof without delay. The Provider shall support the Customer within the scope of his possibilities in processing such claims and in complying with the obligations set out in Art. 33 to 36 DS-GVO.

8. The Customer's rights of control and information

The Provider shall provide the contracting authority with evidence of compliance with its obligations by appropriate means. The Customer shall check the suitability.
The Provider may refer to appropriate certification or other suitable test evidence for compliance with the agreed protective measures and their tested effectiveness. In particular, certifications under Art. 42 DS-GVO or evidence under Art. 40 DS-GVO are appropriate. In addition, the following may also be considered: certification in accordance with ISO 27001 or ISO 27017, ISO 27001 certification based on IT-Grundschutz, certification in accordance with recognised and suitable industry standards or proof of auditing in accordance with SOC / PS 951. The certification and auditing procedures must be carried out by a recognised independent third party. The provider must provide its certificates or audit evidence. Other suitable means (e.g. activity reports of the data protection officer or extracts from reports of the auditors) may be made available to the Customer to prove compliance with the agreed protective measures. The Customer 's right of inspection shall remain unaffected by this.
The Customer is entitled to carry out inspections at the Provider's premises during normal business hours without disrupting the operating process, regularly after prior notification and taking into account a reasonable lead time, in order to check compliance with the provisions of data protection law. The Provider may make the inspection dependent on the signing of a confidentiality agreement with regard to the data of other customers and the TOM he has met. The Provider is obliged to enable and contribute to audits and inspections of the Customer.
To remedy the findings made during an inspection, the parties shall agree on the measures to be implemented.
If a supervisory authority makes use of powers under Art. 58 DS-GVO, the parties shall inform each other of this immediately. They shall support each other in their respective areas of responsibility in fulfilling their obligations to the respective supervisory authority.

9. Liability and compensation

If an affected person asserts a claim for damages against one party due to a violation of data protection regulations, the claimed party must inform the other party immediately.
The Customer and the Provider shall be liable to the persons concerned in accordance with the provisions of Art. 82 DS-GVO.
The parties shall support each other mutually in defending against claims for damages by affected persons, unless this would jeopardise the legal position of one party in relation to the other party, the supervisory authority or third parties.

10. Costs

The costs incurred by the Provider as a result of measures taken by the Customer shall be borne by the Customer, insofar as these are not covered by the remuneration under the main contract. This applies in particular to costs incurred by the Provider as a result of controls and inspections by the Customer.

11. Term

The GCU is concluded for an indefinite period of time and ends with the termination of the contract, without the need for a separate termination. In this case, the Provider shall, at the Customer's discretion, immediately surrender the processed data or delete it in accordance with data protection regulations and confirm this to the Customer in text form. If the Provider has its own legal obligation to store this data, it shall notify the Customer of this in text form.

12. Final provisions

Should the data of the Customer be endangered at the Provider by seizure or confiscation, by insolvency or composition proceedings or by other events or measures of third parties, the Provider shall inform the Customer of this immediately in text form. The Provider shall immediately inform all persons responsible in this context that the responsibility for the data lies exclusively with the Customer.
Oral collateral agreements have not been made. Amendments and supplements to the GCU require text form and express reference to the GCU in order to be effective. Deviating oral agreements between the parties are invalid. This also applies to changes to this clause.
Should individual or several provisions of this GCU be invalid in whole or in part, the remaining provisions shall remain unaffected. The parties undertake to replace invalid provisions with provisions that come as close as possible to the economic purpose intended by the parties at the conclusion of this GCU. The same shall apply in the event of a gap in these GCU which has not been considered by the parties.
German law shall apply to the exclusion of the conflict of laws provisions; Art. 3 para. 3, para. 4 ROM-I-VO shall remain unaffected. The GCU is subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws provisions; Art. 3 para. 3, para. 4 of the Rome I Regulation remain unaffected. 

Specifications for order processing for SaaS

The parties shall make the following additional specifications to the agreement on order processing (Appendix 1):

1. The object of the processing

The object of processing is the provision of the services described in the agreement on SaaS by shopware for the Customer, including the anonymization of usage-related personal data for further use by shopware in accordance with the agreement on SaaS.

2. Duration of processing

The duration of the processing is specified in the contract.

3. Purpose of the processing

Processing shall take place continuously over the term of the contract.
Exclusively for the purpose of fulfilling shopware's obligations under the contract in connection with the provision and operation of SaaS, personal data from the Customer's area of control will be processed by shopware in its entirety within the meaning of article 4 no. 2 DS-GVO, in particular collected, stored, modified, read out, queried, used, disclosed, compared, linked, anonymized or deleted.

4. Categories of data

The categories of data affected by the processing depend on the use of Shopware Cloud by the Customer. Categories of data that may be considered as subject to processing are master data, contact data, personal and identification numbers, credit card and other payment transaction data, customer behaviour data, contract data, user IDs 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 use of Shopware Cloud by the Customer. The categories of data subjects concerned are employees, customers, interested parties, suppliers and service providers.

6. Subcontractors

The Provider uses the subcontractors listed in the service description for the processing.

7. Disclosure of data to recipients in third countries

The Provider shall disclose data in accordance with point 4 to recipients in third countries listed in the service description and, in order to ensure an adequate level of protection, shall comply with the conditions set out in the service description within the meaning of Article 44 et seq. DS-GVO.