General Terms and Conditions for the Product Shopware Multichannel Connect powered by ChannelEngine

The Parties to the Agreement are solely Shopware AG, Ebbinghoff 10, 48624 Schöppingen, Germany and the Client.

Shopware acts as an independent reseller of the products of ChannelEngine.com B.V. having its registered office at Vondellaan 47, 2332 AA Leiden, with company registration number: 28096738 (“ChannelEngine”). Therefore, this Agreement concerns a third party products and services being provided by Shopware to the Clients. The Parties agree that Shopware can use third parties by the fulfillment of its obligations arising out of this Agreement. The Client hereby agrees that Shopware will fulfill all or part of its obligations arising out of this Agreement using ChannelEngine.

Solely Shopware remains the contractual party of the Customer. Each time, when ChannelEngine shall supply any products or render any services according to this Agreement to the Client, it will be doing so solely for Shopware and Shopware shall be responsible for bringing ChannelEngine to do so. ChannelEngine is not a contractual party of the Client.

Key Definitions: In the Agreement, the following terms have the stated meaning, the plural and the singular shall mean the same.

  • SKUs (Stock Keeping Unit): Maximum number of products you can add to ChannelEngine.

  • Environments: ChannelEngine environments represent separate entities within the service. One environment per region is advised.

Agreement: These General Terms and Conditions, together with the Data Processing Agreement and the applicable Order Form sets out the full terms of the contract between you as the Client and Shopware.

Shopware Multichannel Connect powered by ChannelEngine: A third party Software Product owned by ChannelEngine (and its licensors) that is supplied to the Client by Shopware used to provide the SaaS Platform. The Product and Services description which is a part of the Agreement unless otherwise agreed, can be found at https://support.channelengine.com/hc/en-us.

Committed Gross Merchandise Value (Committed GMV): If applicable: The minimum value of all Orders that are processed on all Marketplaces and through the SaaS Platform that the Client promises to receive per annum. The total amount of this value is specified in the Order Form, and will be invoiced by Shopware on a monthly basis.

Existing Gross Merchandise Value (Existing GMV): The value of Orders that Clients receive through their Marketplaces and own vendor channels that they bring to the SaaS Platform before the Start Date of this Agreement. Shopware has the right to reasonably amend the Fees if the Existing GMV as agreed upon in the Order Form, is incorrect.

Gross Merchandise Value: The total merchandise value of all Orders that are processed on all Marketplaces and through the SaaS Platform, excluding taxes.

Fees: The total costs that are payable for the Services as per the Order Form and that may consist of the Onboarding Support Fee, the License Fee, the Success Fee and the Translation Fee.

Add-Ons: Additional services and/or features of the SaaS Platform that the Client may choose to add to their subscription. Pricing of the latest Add-Ons may be specified in the Order Form or upon request at Client’s commercial point of contact. If applicable, the Add-Ons fee will be added to the Client’s recurring invoices.

Commit Fee (if applicable): A monthly fee that is a percentage of the total Committed Gross Merchandise Value of Client and that is payable by the Client. The Commit Fee will be invoiced three (3) months after the Invoice Start Date or earlier if the integration is finalized sooner.

License Fee: A monthly fee payable by the Client for the use of the SaaS Platform in accordance with the terms and conditions of this Agreement and as specified in the Order Form.

Onboarding Support Fee: A one-time fee payable by the Client to support the technical integration and onboarding of Client to the SaaS Platform and as specified in the Order Form.

Success Fee: A monthly fee payable by the Client, that is variable and applies once the Existing Gross Merchandise Value (and/or Committed GMV) has been reached. The Success Fee consists of a percentage on the amount between the Existing Gross Merchandise Value (and/or Committed GMV) and the actual Gross Merchandise Value.

If there is no Existing Gross Merchandise Value the following definition shall apply: A monthly fee payable by the Client that applies over the Gross Merchandise Value that goes through the SaaS-Platform.

Marketplace: The website or channel which Client can use to sell its products to its customers like in particular Shopware Multichannel Connect powered by ChannelEngine (for example Amazon.com and bol.com).

Order: The order of a product by a customer of the Client via a Marketplace processed through the SaaS Platform, including returns.

Permitted Users: Those personnel of the Client who are authorized to access and use the Services on the Client’s behalf in accordance with clause 3.3 of this Agreement.

SaaS Platform: The SaaS Platform provided via ChannelEngine.com that provides the ability to integrate existing ERP/E-Commerce systems with Marketplaces and marketing platforms while adding value via advanced management tools and monitoring. The SaaS Platform is described in further detail on the website (www.channelengine.com).

Services: The SaaS-Platform and any products provided by Shopware to its Client directly or by a third party, especially ChannelEngine ot its affiliates. The Services may consist of implementation and integration support, training, usage optimization advice, and operational support as defined on the ChannelEngine website or any other documentation that may be shared with the Client by Shopware or ChannelEnigne.

Start Date: The date as of when this Agreement is legally binding and enters into force.

Invoice Start Date: The date as of when the Fees for the Services will be invoiced to the Client.

SERVICES

2.1. General: Shopware provides the Services as specified in the Order Form and in accordance with the terms of this Agreement.

2.2. Onboarding Support:

a. As part of the Services, as specified in the Order Form, the Client will receive support with the technical integration and onboarding of its system to the SaaS Platform.

b. The Client will support-, guide and test the integration between the systems of the Client and the Shopware Multichannel Connect powered by ChannelEngine and will be provided with the guidance through the integration and onboarding of the agreed Marketplaces in the onboarding scope.

c. The Client must designate a project manager who will be available during working hours. Furthermore, the Client must allocate resources to work on the technical integration and onboarding with the SaaS-Platform. The Client commits and ensures that the project manager and other resources have the expertise and the capacity to lead the integration on behalf of the Client. It is the Client's responsibility if Client is not able to progress with the onboarding as per the onboarding plan.

d. The appointment of the project manager and any technical resources is the Client’s responsibility and Shopware does not take any responsibility for the work performed by the Client or the project manager. The Client is responsible for developing the technical integration with the SaaS-Platform. Furthermore, the Client is responsible for preparing and setting up the product data and configuration of the channels.

e. If the Client chooses to reintegrate with Shopware Multichannel Connect powered by ChannelEngine because of system changes, additional integration fees will be charged. This amount is to be defined and agreed on between Client and with Shopware before the reintegration.

f. Any questions and issues that arise during the onboarding shall be mutually resolved and agreed upon by and between the Parties. If the Client requests to change or extend the scope of its Onboarding Support, additional fees can be charged for that upon agreement.

2.3 Availability: The Services shall be provided in accordance with the SLA (Appendix 1). The SLA does not apply to BETA Products. Furthermore, Shopware does not make any warranty or representations on the availability of Marketplaces and any other third party platforms and channels. Shopware cannot give any hard deadlines when possible issues will be resolved partly due to the dependency on external platforms.

2.4 Changes to the Services:

a. ChanelEngine may time to time, make available and offer additional services to supplement the SaaS Platform.

b. At the request of the Client and subject to the Client paying the applicable Fees, Shopware may agree to provide the Client with such services on the terms of this Agreement.

c. ChannelEngine may change the features and functions of the Services anytime, but Shopware will use reasonable efforts to notify the Client of such changes.

2.5 BETA Products: Please be advised that BETA products are provided “as is” with no warranties and representations. Thus, when using BETA products this is at the Client's own risk. These channels and features can still have issues that need to be resolved during the BETA period.

CLIENT OBLIGATIONS

3.1 General use: The Client and its personnel must:

a. use the Services in accordance with the Agreement solely for:

i. the Client’s own internal business purposes; and

ii. lawful purposes; and

iii. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.

3.2 Access conditions: When accessing the SaaS Platform, the Client and its personnel must:

a. not impersonate another person or misrepresent authorisation to act on behalf of others;

b. correctly identify the sender of all electronic transmissions;

c. not attempt to undermine the security or integrity of the SaaS Platform;

d. not use, or misuse, the SaaS Platform in any way which may impair its functionality or impair the ability of any other user to use the SaaS Platform;

e. not attempt to view, access or copy any material or data other than that to which the Client is authorized to access;

f. neither use the SaaS Platform in a manner, nor transmit, input or store any data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is objectionable, incorrect or misleading; and

g. comply with any applicable terms of use on the Website, as updated from time to time by Shopware or ChannelEngine.

3.3 Personnel:

a. Without limiting clause 3.2 of this Agreement, no individual other than a Permitted User may access or use the SaaS Platform.

b. The Client may authorize any member of its personnel to be a Permitted User, in which case the Client will provide Shopware with the Permitted User’s name and other information that is reasonably required in relation to the Permitted User.

c. The Client must procure each Permitted User’s compliance with clauses 3.1 and 3.2 of this Agreement and any other reasonable condition notified by Shopware to the Client.

d. A breach of any term of the Agreement by the Client’s personnel is deemed to be a breach of the Agreement by the Client.

3.4. Authorisations: The Client is responsible to obtain all authorisations and consents that are required for it and its personnel to use the Services, including to use, store and input all data into the systems, and process and distribute data through the Services.

3.5. Terms of Marketplaces: For the avoidance of doubt, the Client acknowledges that it is bound by and ensures full compliance with all terms and provisions of the Marketplaces the Client uses through the Shopware Multichannel Connect powered by ChannelEngine. The Client bears all and any responsibility for its products, and agrees to fully indemnify Shopware from any claims, including any claims of third parties, thereto.

DPA of Shopware applies: Data Processing Agreement (DPA) for Customers and Technology Partners | Shopware, with the adjustment that ChannelEngine is Shopware’s sub-processor in the meaning of Annex IV of this DPA.

INTELLECTUAL PROPERTY

5.1 Intellectual Property includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, software, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

5.2 Ownership

a. The Client accepts that the Product Shopware Multichannel Connect powered by ChannelEngine is a third party product of ChannelEngine and ChannelEngine owns and reserves all right, title, and interest, including without limitation, intellectual property rights, in and to the Services or any derivative works. The Client may not without prior written approval of Shopware reverse engineer, copy, dissemble, or decompile the Services, or remove any copyright, trademark or other proprietary rights notices contained in or on the Service or on the website of Shopware or ChannelEngine.

b. The Client exclusively owns and reserves all intellectual property rights in and to the Client’s data placed via Services. The Client grants Shopware a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.

5.3 Third party sites and material: The Client acknowledges that the SaaS Platform may contain links to third party websites that are connected or relevant for the Client and for the user experience of the SaaS Platform. Client understands and acknowledges that any link on the SaaS Platform does not imply any endorsement, approval or recommendation of Shopware or ChannelEngine, or responsibility for those websites or their content or operators. To the maximum extent permitted by law, Shopware excludes all responsibility or liability for those websites.

5.4 Indemnification:

a. Shopware will indemnify Client on written demand against all damages, fines, penalties, settlement amounts (if they have been pre-approved by Shopware), costs and expenses incurred or awarded against Client in connection with any claim, action, demand, suit, or proceeding made or brought against Client by an unaffiliated third party alleging that the use of the Services violate their intellectual property rights. For the sake of clarity, Shopware will take all steps necessary to defend such infringement. This indemnification only applies if Client has been using the Services in accordance with the terms of this Agreement but does in any case not apply to BETA Products (clause 2.5 of this Agreement).

b. Client will indemnify Shopware on written demand against all damages, fines, penalties, settlement amounts, costs and expenses incurred or awarded against Shopware in connection with any claim, action, demand, suit, or proceeding made or brought against Shopware by an unaffiliated third party alleging any violation of the terms of a Marketplace, infringement of a third party’s intellectual property rights, or violation of applicable laws.

5.5 Promotional purposes: Client hereby gives permission to Shopware to publish and/or use its organization name, logo, or registered mark for all purposes connected with the business for promotional or marketing purposes of Shopware. Shopware may use the Client's name, logo, or mark for these purposes without further permission or acquiescence by the Client, and the Client hereby releases Shopware from all liability relating to the publication or use of the name, logo, or mark.

6 FEES

6.1 Fees: The Client must pay to Shopware the Fees for the Services as of the Start Date which is specified in the Order Form. The Fees are payable in any event, also if the Client did not start using the Services, regardless of the reason, including any reasons that may have caused delays of the onboarding or when the Client goes live.

6.2 Invoicing and Payment:

a. The Client will provide accurate and complete invoicing and contact details.

b. Shopware will provide the Client with valid VAT tax invoices on the dates set out in the Payment Terms, or if there are none, monthly in arrears for the Fees due in the previous month.

c. The Client must pay the Fees:

i. as per the Invoice Start Date and within the payment term as specified in the Order Form; and

iii. If Client and Shopware agreed on an Existing GMV and/or Committed GMV, Client shall pay Shopware at least the minimum revenue commitment as set forth in the Order Form. If the total Orders exceed the Existing GMV and/or Committed GMV, the actual total of such Orders shall be applied to calculate the applicable Success Fee. GMV only counts from the Shopware Multichannel Connect powered by ChannelEngine but not from the Shopware Core (no double counting of GMV).

6.3 Overdue amounts:

a. Shopware may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Shopware’s primary trading bank as at the due date (or, if Shopware’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

b. If the Client still fails to pay the Fees after the second payment reminder, Shopware may forward the invoices to a payment collection company and may suspend the Clients' access to the ChannelEngine SaaS Platform.

6.4 Taxes: All Fees are exclusive of any (a) applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including sales, use, value-added, consumption, communications, digital services tax or withholding taxes; and (b) other indirect taxes, as well as any other costs including transaction costs or bank transfer fees. The Client is responsible for all such taxes associated with the Services, excluding any taxes based on Shopware's net income (being corporate income tax), property, or employees. If the Client is exempt from any Taxes, the Client is responsible for providing Shopware with a valid tax exemption certificate or a value added tax identification number. If Taxes should be accounted for under a reverse charge mechanism or similar procedure, it is the Client’s responsibility to provide Shopware with the necessary evidence. The Client may withhold or directly pay Taxes with your purchase of the Services if required to do so by applicable law, but Shopware will not be responsible for any such taxes.

6.5 Anniversary: On each anniversary of the Start Date, Shopware reserves the right to increase the total amount of fees as specified in the Order Form by a range of 5% or the maxi-mum rate of inflation based on the Consumer Price Index, whichever is higher.

7 CONFIDENTIALITY

7.1 Confidential Information: any information disclosed by one Party (“Disclosing Party”) to the other (“Receiving Party”) that is marked as confidential or that should be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure.

Confidential Information does not include information that (a) is publicly available, (b) was rightfully known by Receiving Party prior to disclosure by Disclosing Party, (c) was lawfully disclosed to Recieving Party by another party not under any obligation or breach of confidentiality, or (d) is independently developed by or for Receiving Party without use of or reference to the Confidential Information of Disclosing Party.

7.2 Use and Disclosure of Confidential Information: Each party must, unless it has the prior written consent of the other party:

a. keep confidential at all times the Confidential Information of the other party;

b. protect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential Information but in no instance shall such standard be less than reasonable care;

c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1a and 7.1b of this Agreement.

7.3 Permitted disclosure: The obligation of confidentiality in clause 7.1a of this Agreement does not apply to any disclosure or use of Confidential Information:

a. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

b. required by law (including under the rules of any stock exchange);

c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

d. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or

e. by Shopware or Client if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Shopware or the Client enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7 of this Agreement.

8 WARRANTIES

8.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute a binding agreement for the Parties.

9 LIABILITY AND INDEMNIFICATION

9.1 Shopware shall be liable without limitation for damages resulting from injury to life, limb or health as well as in the event of intent, gross negligence or fraudulent intent.

In other cases, Shopware’s liability shall be limited to the breach of obligations, the performance of which is essential for the use of the services owed by Shopware to the Client and on the fulfillment of which the Client regularly relies or may rely (in short "essential contractual obligations"). Liability for breach of essential contractual obligation shall be limited to the foreseeable damage typical for the contract. The parties agree that the amount of maximum 2.500.000,00 EUR corresponds to the foreseeable damage typical for the contract. The maximum liability will not exceed this amount.

The above limitations of liability shall also apply mutatis mutandis in favor of the vicarious agents, organs and representatives of the Shopware.

Claims under the Product Liability Act, where applicable, shall remain unaffected.

10 TERM, TERMINATION AND SUSPENSION

10.1 Duration: Unless terminated under this clause 10, the Agreement:

a. starts on the Start Date for the period of time as set out in the Order Form ("Initial Term"); and

b. the Agreement will be automatically renewed for successive terms of 12 months after the Initial Term unless a party gives 30 days written notice that the Agreement will terminate on the expiry of the then current term.

10.2 Termination rights:

a. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:

i. breaches any material provision of the Agreement and the breach is not remedied within 10 days of the date of a written notice from the first party requiring it to remedy the breach or is not capable of being remedied;

ii. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee or chargee agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or

iii. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure (as defined further down).

10.3 Consequences of termination or expiry:

a. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.

b. On termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.

c. At any time prior to one month after the date of termination or expiry, the Client may request:

i. a copy of any data stored using the SaaS Platform, provided that the Client pays Shopware’s reasonable costs of providing that copy. On receipt of that request, Shopware must provide a copy of the data in a common electronic form. Shopware does not warrant that the format of the data will be compatible with any software; and/or

ii. deletion of the data stored using the SaaS Platform, in which case Shopware shall bring ChannelEngine to use reasonable efforts to promptly delete that data.

d. To avoid doubt, Shopware is not required to comply with clause 10.3 ci of this Agreement to the extent that the Client previously requested deletion of the data.

10.4 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4.4, 6, 7, 9, 10.3, 10.4 and 11 of this Agreement continue in force.

10.5 Suspending access: Without limiting any other right or remedy available to Shopware, Shopware may restrict or suspend the Client’s access to the SaaS Platform where the Client (including any of its personnel):

a. undermines, or attempts to undermine, the security or integrity of the SaaS Platform or any underlying systems;

b. uses, or attempts to use, the SaaS Platform:

i. for improper purposes; or

ii. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Platform; or

iii. has otherwise materially breached the Agreement (in Shopware’s reasonable opinion).

10.6 Notice: Shopware must notify the Client where it restricts or suspends the Client’s access under clause 10.5 of this Agreement. Sec. 6.3 b of this Agreement remains unaffected.

11 GENERAL

11.1 Force Majeure: Except for the payment of Fees, neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by unavoidable events beyond its reasonable control (e.g. natural catastrophes, laws, actions of governments), provided that the affected party:

a. as soon as possible notifies the other party and provides full information about the force majeure;

b. uses best efforts to overcome the force majeure; and

c. continues to perform its obligations to the extent practicable.

11.2 Rights of third parties: No person other than Shopware and the Client has any right to a benefit under, or to enforce, the Agreement.

11.3 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

11.4 Independent contractor: Subject to clause 4.2 of this Agreement, Shopware is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

11.5 Notices: A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Order Form or otherwise notified by the other party for this purpose.

11.6 Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

11.7 Variation: Any variation to the Agreement must be in writing and signed by both parties.

11.8 Entire agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.

11.9 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of Germany under exclusion of the CISG-Convention. Each party submits to the jurisdiction of the Courts of Cologne, Germany in relation to any dispute connected with the Agreement.

11.10 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.

Appendix 1: SLA – Service Level Agreement

The SLA is only applicable to Growth and Scale packages.

The Parties of the following SLA are solely Shopware and the Client. Shopware’s obligation will be fulfilled for Shopware by ChannelEngine. Anytime ChannelEngine’s obligation is meant, Shopware is responsible towards the Client for bringing ChannelEngine to fullfil these obligations. ChannelEngine is not a contractual party of the Client.

GENERAL 1.1 Support Services shall be conducted in accordance with the Service Levels set forth in this Service Level Agreement. 1.2 Any changes to this Service Level Agreement shall be notified by Shopware to the Client. 1.3 Shopware will not be responsible for the availability or failure of third parties, including, but not limited to, the availability or failure of Marketplaces and third party software (beside of Shopware Multichannel Connect powered by ChannelEngine).

DEFINITIONS In this Service Level Agreement, capitalized terms shall have the meanings set forth below:

2.1. “Availability” and “Available” shall have the meaning set forth in article 3.1.

2.2 “Business Day” means Monday to Friday, excluding public holidays, in the Netherlands.

2.3 "Business Hours” means the hours of 9 a.m. to 6 p.m CET on a Business Day.

2.4 “Case” means a request for Customer Support that is either an Incident or a Support Request.

2.5 “Customer Support” means the customer support services provided by ChannelEngine (for Shopware) in relation to the Service.

2.6 “Customer Support Portal” means the ChannelEngine web portal for general Customer Support matters, where general information is provided on any service interruptions or other issues affecting the provision of the Service, including information on any Scheduled Maintenance.

2.7 “Customer Support Request” means a request for technical assistance, or guidance on use of the Service, that is not due to an Incident.

2.8 “Customer Support Response Time” means the period of time within which Client submission of Cases shall be confirmed by ChannelEngine, by email, respectively.

2.9 “Excluded Downtime” means any downtime caused by factors outside of ChannelEngine’s reasonable control, including any force majeure event, internet services availability outside of ChannelEngine’s infrastructure, any downtime resulting from outages of third party connections or utilities, such as Marketplaces, and actions and inactions of Client.

2.10 “Incident” means a Defect or other interruption of operation of the Service, causing decreased functionality or performance of the Service.

2.11 “Incident Response Time” means the period of time from the detection (or Client reporting) of an Incident until ChannelEngine provides Client with an initial response that addresses the reported Incident.

2.12 “Measurement Period” means a calendar month.

2.13 “Offer Processes” means everything related to the export and import of product prices and stock levels.

2.14 “Order Processes” means everything related to the process of retrieving and processing Orders, shipments and returns of customers of the Client.

2.15 “Planned Downtime” means downtime due to scheduled maintenance.

2.16 “Priority Level Incident” means a priority level (between 1 and 3) designated to an Incident in accordance with the Priority Level Incident table set forth in Section 6.4.

2.17 “Product Content Processes” means everything related to the export and import of any product information not designated as offer information. Examples include, but are not limited to: product descriptions, product images, custom fields.

2.18 “Scheduled Maintenance” means any update of the Service or the underlying Infrastructure which ChannelEngine will perform regularly at its sole discretion or when deemed necessary, e.g. to resolve an Incident.

2.19 “Service” means the ChannelEngine web application, APIs and all background synchronization tasks.

2.20 “Service Level Default” means a failure by ChannelEngine to achieve a Service Level, and such failure is not due to any Liability Exclusion.

2.21 “Service Levels” means the applicable service levels for the Service as set forth herein.

2.22 “Unscheduled downtime” means downtime in the Service due to a Priority 1 - Critical Incident as defined in article 6.4.

SERVICE AVAILABILITY Shopware commits that ChannelEngine shall deliver 99.5% availability of the Service for any given Measurement Period. Please note this availability only applies to a production environment of the Service and not for a BETA or test environment if that has been set up. The Service is available when the following conditions are met:

The web application ([customer].channelengine.net) is reachable.

API calls can be made to the Merchant API (as explained on https://help.channelengine.com/category/472-channelengine-merchant-api)

Background synchronization tasks are running and synchronize data at least:

every one (1) hour for Order processes

every one (1) hour for Offer processes and every four (4) hours for Product Content processes in case Client has a Catalog Size smaller than 100.000 Products

every two (2) hours for Offer and every eight (8) hours for Product Content processes in case Client has a Catalog Size bigger than 100.000 Products

The availability percentage is calculated as: A = ((B - C) / B) * 100

A = availability %

B = scheduled uptime (hours per day * days per month)

C = unscheduled downtime (in hours).

Scheduled uptime excludes Planned Downtime and Excluded Downtime.

4. SCHEDULED MAINTENANCE

4.1 ChannelEngine has the right to perform Scheduled Maintenance. The frequency of Scheduled Maintenance may be increased or decreased at ChannelEngine’s discretion.

4.2 Scheduled Maintenance is provided free of charge as part of the Service. Client cannot choose to defer Scheduled Maintenance, as all Scheduled Maintenance will be performed on the standard Service for all Clients.

4.3 Shopware will bring ChannelEngine to making its best commercial efforts to ensure that any temporary unavailability of the Service during such Scheduled Maintenance is minimized. If downtime is needed for Scheduled Maintenance, ChannelEngine shall (a) schedule this maintenance outside of Business Hours (normally Monday/Friday 02:00 - 08:00 CET or Saturday/Sunday 07:00 - 18:00 CET), (b) notify customer at least 7 calendar days in advance, and (c) make its best commercial efforts to ensure no down time during the months November, December and January.

5. COMPATIBILITY Shopware commits that ChannelEngine will be committed to backward compatibility of the ChannelEngine API; however, if for good reasons compatibility cannot be guaranteed, ChannelEngine will inform the Customer on Shopware’s behalf at least six months prior to breaking the backward compatibility and give guidance on how to migrate to the new version of the ChannelEngine API.

6. CUSTOMER SUPPORT AND SUPPORT SERVICE LEVELS

6.1 Shopware commits that ChannelEngine will provide Customer Support, including Case management, as follows.

Case Management

Cases will be submitted by Client in English. Cases may be submitted by Client (a) on 24/7/365 basis through the Support form, on ChannelEngine’s Customer Portal or (b) by telephone during business hours to the telephone numbers specified by ChannelEngine from time to time.

Each Case shall be designated as either an Incident or a Support Request. ChannelEngine shall assign each Case a unique Case reference number. Upon successful resolution of the Case, ChannelEngine will notify Client hereof by e-mail whereupon the Case will be closed.

Customer Support Response Time

ChannelEngine shall achieve the following Customer Support Response Time for any given Measurement Period. Customer Support Response Time is calculated as the average Customer Support Response Time for all submitted Cases during a Measurement Period.

Submission of Case

Customer Support Response Time

By Support form during Business Hours

4 hours

By telephone during Business Hours

3 minutes

By telephone outside Business Hours

15 minutes

By Support form outside Business Hours

8 hours

6.2 ChannelEngine’s Customer Support service desk will manage progress of the Incident to a resolution which may be either of (a) a permanent resolution to the Incident, normally provided via Scheduled Maintenance, or (b) a temporary workaround, reasonably acceptable to Client, which may be replaced by a permanent resolution via Scheduled Maintenance as soon as reasonably possible.

6.3 ChannelEngine must be able to reproduce errors in order to resolve an Incident. The Client accordingly agrees to cooperate with ChannelEngine to reproduce errors and participate in troubleshooting activities as requested. Client may be asked to provide remote access for troubleshooting purposes. Client must be available to promptly provide all relevant information and access to ChannelEngine, including detailed error descriptions, screenshots and other required information.

6.4 Priority Level Incident table

Priority level

Description

Incident Response Time and time interval for providing regular progress updates

Time to Resolve

Priority 1 – Critical

Any incident in the Service that causes an Outage. An Outage means any event that makes the Service unavailable to the Customer, other than scheduled downtime or excluded downtime. Unavailable means that one of the three conditions defined in 3.1 regarding the web application, the API, or the background synchronization tasks are not met.

1 hour

4 hours

Priority 2 – Major

Any incident that does allow the Customer to use the Service, but in a severely limited way for the ChannelEngine web application, APIs and/or any background synchronization task related to Offer or Order processes, without an available workaround.

2 hours

12 hours

Priority 3 - Minor

Any incident that is neither a Critical nor a Major incident, but does limit the way in which the Customer was intended to use the Service.

8 hours

Best effort

6.5 Shopware commits that ChannelEngine’s support will be diligently and professionally to resolve Incidents, using qualified and trained personnel with necessary knowledge of the Service.

6.6 The time to resolve is calculated as of the moment ChannelEngine responded to the reported incident. Furthermore please note that a resolution could be a work-around that lowers the incident from Critical to Major or Major to Minor. In that case time to resolve is calculated as the total time as of the response until the implementation of the workaround, making the Service available again for the Customer.

6.7 Client may submit Customer Support Requests concerning issues which are not Incidents, e.g. general inquiries on use of the Service. Shopware commits that ChannelEngine shall make its best commercial efforts to respond to Support Requests as soon as reasonably possible, always considering the urgency of the Support Request. Client shall be entitled to monitor the progress of submitted Support Requests in the Support Portal.

7. SERVICE LEVEL, COMMUNICATION & REPORTING

7.1 In case of a Service Level Default, Shopware shall bring ChannelEngine to immediately take such measures as are necessary to ensure that the agreed Service Level is restored and maintained. Furthermore, ChannelEngine shall investigate and disclose the cause of such Service Level Default and, upon Client’s request, present a plan of action to ensure that the agreed Service Level is maintained in the future. Shopware shall bring ChannelEngine to implement those parts of the plan which it is responsible for at no extra cost.

7.2 Shopware commits that ChannelEngine shall use commercially reasonable efforts to keep the Customer informed of the service level performance and incident resolution, this includes:

Providing a monthly online overview of service level performance and incidents;

Shopware commits that ChannelEngine will report Customer regarding the status of incident resolution in case of a Critical incident at least every hour and in case of a Major incident at least every 2 hours.

8. LIABILITY EXCLUSION

8.1 Shopware shall not be liable for any failure to achieve a Service Level by ChannelEngine, including any Downtime, if such failure is caused by:

Scheduled Maintenance;

failures or malfunction of Client’s own systems, technology, equipment and services, which are to be outside the liability of Shopware;

failures or malfunction of such third-party systems, technology, equipment and services, which are to be outside Shopware’s liability including, but not limited to, the availability or failure of marketplaces and external plugins;

any acts or omissions by Client or any of its users including any failure to use the Service in accordance with the instructions of Shopware or ChannelEngine, or any other circumstance attributable to Client or its users; or

Force Majeure events.

8.2 Shopware shall be liable for achieving the Service Level by ChannelEngine, including for resolving any Incidents, unless Shopware has established that any Liability Exclusion as set out above is applicable.

8.3 Shopware will make a reasonable effort to notify the Client in advance of any scheduled Services unavailability. Shopware will have no liability for any damages, losses (including loss of data or profits), or any other consequences incurred as a result of unavailability of Services or the failure to provide notice of unavailability.