Terms of Service

Agreement on the use of the ALZURA Shop e-commerce Platform

Updated: March 12, 2019

The licensor hereby grants you a non-exclusive license to use ALZURA Shop. The scope of this license is determined by the package you have selected and any additional modules you may have selected. An overview of the different packages of ALZURA Shop is available at shop.alzura.com. To be granted a license, you (hereinafter referred to as "licensee") must agree to the following Terms of Service:

Preamble

The licensee plans to use the software products of the licensor in the licensee's company. The licensor therefore grants the licensee the use of its software products on the basis of this agreement for a limited period of time.

§ 1 Definitions

1. "Software" is the shop system ALZURA Shop in its currently valid version.
2. "Confidential information" means all information and documents of the other party which are marked as confidential or are to be regarded as confidential in the circumstances, in particular, information about business processes, business relations and know-how.

§ 2 Scope

1. The object of this agreement is the transfer of the software for the term of the agreement, including the granting of the rights pursuant to Clause 3 hereunder that are required for using the software in accordance with the agreement.
2. The licensee must register at shop.alzura.com and create a user account or use an existing ALZURA account to use the shop system. The licensor shall make the software available to the licensee on a cloud-based basis after successful completion of the order process; the access data shall also be sent to the licensee by email.

§ 3 Granting of rights

1. The licensee receives the non-exclusive right to use the software, limited in time to the term of the lease and not sub-licensable. The agreed use encompasses the installation as well as the loading, display and running of the installed software. The licensor grants a so-called operating license, i.e. the licensee is entitled to use the software for business conducted in his or her own name. It is expressly forbidden to hold or use the license as a straw man for third parties.
2. The licensee is not entitled to reproduce the software beyond the cases mentioned in Clause 1.
3. Should the licensee violate any of the above provisions, all rights of use granted under this agreement shall immediately become invalid and automatically revert to the licensor. In this case, the licensee must stop using the software immediately and completely. In the event of a breach of the agreement provisions, the license entitles the licensor to block the license rented to the licensee through technical means.

§ 4 Right of withdrawal for consumers

If the licensee is a consumer within the meaning of Section 13 BGB (German Civil Code), i.e. a natural person who concludes the license agreement for a purpose that cannot be attributed to his or her commercial or self-employed professional activity, he or she is entitled to a right of revocation in accordance with the following conditions:

§ 5 Fee, due date and default

1. The licensee grants new customers a free trial phase for 30 days. New customers are those who register for the first time.
2. The monthly fee for the granting of use (hereinafter referred to as "License Fee") varies depending on the software variant used. The licensor expressly reserves the right to increase fees. In addition to the base fees, a commission is charged for each transaction processed via the shop software. The commission amount can be viewed at shop.alzura.com. The basis for calculating the commission is the licensee's net sales price.
3. The monthly License Fee is due at the beginning of the month for the respective month in advance. (E.g. The License Fee for February 2015 is due to be paid on February 4, 2015 (third working day). Partial fees resulting from the use of the trial phase will be charged retroactively with the first full License Fee.
   The commission will be charged retroactively, but together with the License Fee. (Example: The June invoice contains the commission of the transactions settled in May and the base fee for June).
   The licensor shall send the licensee a monthly invoice by email for the licensee's records.
4. The licensee undertakes to grant the licensor a SEPA direct debit mandate so that the licensor shall be in a position to collect the monthly License Fees and commissions on time. If the collection of the claim fails for reasons for which the licensee is responsible, the licensee shall reimburse the licensor for any additional costs incurred as a result.
5. If the licensee is an entrepreneur within the meaning of Section 14 BGB (German Civil Code), the default interest shall be eight percentage points above the base interest rate applicable at the time. Otherwise, the default interest shall be five percentage points above the base interest rate applicable at the time.

§ 6 Protection of the software

The licensee is obliged to protect the software against access by unauthorized third parties by suitable measures.

§ 7 Duration and termination

1. The agreement is concluded for an indefinite period. It can be terminated by either party to the end of each calendar month with two (2) weeks' prior notice.
2. The agreement may be terminated by either party for good cause, in writing and without notice. Good cause that entitles the licensor to terminate exists in particular if the licensee infringes the licensor's rights of use by using the software beyond what is permitted under this agreement and does not remedy the infringement within a reasonable period of time following a warning from the licensor.
3. The licensee acknowledges that a downgrade to a lower edition of ALZURA Shop is not possible for technical reasons. Should the licensee desire such a downgrade, the licensee shall be entitled to terminate the existing License agreement in compliance with the period of notice if the conclusion of a License agreement for the lower license is applied for at the same time as the notice of termination is submitted.
4. The notice of termination must be given in writing; the parties agree that an email satisfies the written form requirement.
5. In the event of termination, the licensee shall cease to use the software. After the termination takes effect, the licensor has the right to take technical measures to prevent the licensee from using the terminated license.

§ 8 Maintenance

1. The licensor warrants that the contractually agreed quality of the software will be maintained during the term of the agreement and that no rights of third parties are in conflict with the contractually agreed use of the software. The licensor shall remedy any material defects and defects of title in the rented object within a reasonable period of time. However, the licensee is not entitled to regular updates. Updates provided by the licensee are performed automatically when an internet connection is available.
2. The licensee is obliged to notify the licensor in writing of any defects in the software immediately after their discovery. In the case of material defects, this shall be performed by describing the time and circumstances under which the defects occurred.

§ 9 Liability

1. The licensor has unlimited liability:
   • in the event of intent or gross negligence,
   • for injury to life, limb or health,
   • in accordance with the regulations of product liability law and
   • to the extent of a guarantee assumed by the licensor.
2. In the case of a slightly negligent breach of an obligation that is essential to the purpose of the agreement (cardinal obligation), the extent of the licensor's liability is limited to the damage that is foreseeable and typical for the type of business in question.
3. Any further liability is hereby excluded. In particular, the licensor is not Liable for initial defects, unless the requirements of Clause 8, paragraphs 1 or 2 are met.
4. The above limitation of liability also applies to the personal liability of employees, representatives and boards of the licensor.

§ 10 Confidentiality

1. The parties agree not to disclose confidential information. This obligation shall continue for a period of 2 years after termination of the agreement.
2. The obligation does not apply to confidential information
   • that was demonstrably already known to the recipient at the time of conclusion of the agreement or that subsequently became known through a third party without any confidentiality contract, statutory provision or official order being violated;
   • that was already publicly known at the conclusion of the agreement, to the extent this was not based on breach of this agreement;
   • that must be disclosed due to legal obligations or at the order of a court or authority. To the extent permissible and possible, the recipient obliged to disclose will inform the other party in advance and give the other party the opportunity to take action against the disclosure.
3. The parties shall grant access to confidential information only to consultants who are bound by professional secrecy or who have previously been subject to confidentiality obligations under this agreement. Furthermore, the parties will only disclose confidential information to those employees who need this information for the execution of the agreement and will oblige these employees to maintain confidentiality after they leave the company to the extent permitted by employment law.
4. Each culpable breach of the above confidentiality obligations shall result in a contractual penalty to the amount of EUR 1,000.00. All other claims shall remain unaffected.

§ 11 Miscellaneous

1. The licensee may not transfer rights and obligations arising from or in connection with this agreement to third parties.
2. Offsetting is only permitted against undisputed or legally established claims of the licensor.
3. Amendments and supplements to this agreement must be made in writing. This also applies to the amendment or removal of this Clause. Electronic documents in text form do not meet the requirement of written form.
4. General Terms of Service of the licensee do not apply. In addition to this License agreement, the General Terms and Conditions of ALZURA AG apply, whereby the provisions of the License agreement take precedence.
5. German law is solely applicable to this agreement to the exclusion of the agreement of the United Nations on Contracts for the International Sale of Goods dated April 11,1980 (UN Convention on Contracts for the International Sale of Goods).
6. Place of performance is Kaiserslautern. The exclusive place of jurisdiction is Kaiserslautern, provided that each party is a merchant or legal person under public law.
7. Should any provision of this agreement be invalid, this shall not affect the validity of the remaining provisions. The Parties shall endeavour to establish a new provision - in place of the ineffective provision - which is most appropriate with regard to the contractual objective, both in legal and economic terms.
8. All annexes mentioned in this agreement are an integral part of the agreement.