General Terms and Conditions

Please note: This is an unofficial translation provided for convenience. Only the German version is legally binding. In case of inconsistencies between the English and German versions, the German text shall prevail.

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General Terms and Conditions of ScaleCommerce GmbH for Business Customers

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PART 1: GENERAL CONDITIONS

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§ 1 SCOPE OF APPLICATION

(1) ScaleCommerce GmbH (hereinafter referred to as "ScaleCommerce"), Horstweg 24, 14059 Berlin, provides its services exclusively on the basis of these General Terms and Conditions. These also apply to future contracts between the parties in the area of hosting, training, support and services regarding analyses, even if they are not expressly agreed upon again.

(2) ScaleCommerce does not recognize any terms and conditions of the customer that deviate in whole or in part from these terms and conditions, unless ScaleCommerce has expressly agreed to them in writing. These General Terms and Conditions shall also apply if ScaleCommerce provides its services without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.

(3) Customers within the meaning of these Terms and Conditions are exclusively business entities (entrepreneurs).

(4) Individual agreements shall only be valid if they are set down in writing.

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§ 2 SUBJECT MATTER OF THE CONTRACT
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The subject matter of the contract results from these General Terms and Conditions as well as from the provisions made in the offers and price lists. The assumption of a guarantee for certain characteristics (quality) requires written confirmation by ScaleCommerce to be effective.

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§ 3 CONCLUSION OF CONTRACT

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(1) All offers from ScaleCommerce are non-binding unless expressly stated otherwise in the offer.

(2) The contract is concluded upon receipt of the order confirmation by ScaleCommerce, or at the latest upon provision of the service by ScaleCommerce.

(3) Delivery and performance dates or periods mentioned in the contracts are only binding if they have been designated as binding by ScaleCommerce in writing.

§ 4 REMUNERATION/PRICES AND PAYMENT

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§ 5 INDEMNIFICATION AND HOLD HARMLESS

(1) All prices/remuneration are stated in euros excluding the statutory value-added tax of the Federal Republic of Germany.

(2) All services of ScaleCommerce are provided in accordance with ScaleCommerce's price list valid at the time of conclusion of the contract or on the basis of an individual written price agreement between the parties.

(3) The payment amounts contained in the invoices are due within 14 days of delivery of the invoice. The customer shall also be in default without a reminder if he does not pay the amount due within 14 days of receipt of an invoice. In the event of default in payment, ScaleCommerce is entitled to demand interest at a rate of 8 percentage points above the base rate.

(4) The temporary suspension of services does not affect the customer's payment obligation.

(5) ScaleCommerce is entitled to increase the remuneration for the services it offers for the first time 6 months after conclusion of the respective contract. The increase is to be adjusted to the cost increase incurred by ScaleCommerce due to general price developments. It becomes effective one month after notification. The customer may cancel extraordinarily for the time the increase becomes effective. ScaleCommerce will inform the customer of this right of termination.

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(1) Should third parties make claims against ScaleCommerce due to possible legal violations based on unlawful or infringing acts of the customer or content errors in the information provided by the customer, the customer is obliged to indemnify ScaleCommerce from any liability and to reimburse ScaleCommerce for the costs incurred as a result of the claim.

(2) The indemnification obligation also includes the obligation to fully indemnify ScaleCommerce from legal defense costs (court and lawyer fees, etc.). Other claims by ScaleCommerce, in particular to block content and for extraordinary termination, remain unaffected.

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§ 6 DATA PROTECTION

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(1) ScaleCommerce is bound by the privacy policy when handling personal data. The privacy policy can be viewed at any time at https://scale.sc under the menu item Privacy Policy. The customer is informed that ScaleCommerce collects, processes and uses personal inventory and usage data in machine-readable form within the scope of the purpose of the contractual relationship. All personal data are treated confidentially. Data is only passed on to third parties within ScaleCommerce's company and its vicarious agents.

(2) ScaleCommerce may communicate with the customer electronically or by other means for the purpose of contract execution.

(3) A copy of the contract text, which contains the contract data, is stored by ScaleCommerce. The customer can retrieve the stored information from ScaleCommerce.

(4) In the event of suspected criminal activity, ScaleCommerce reserves the right to disclose the information collected to the contracting partners, third parties or the investigating authorities.

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§ 7 REFERENCE INFORMATION

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ScaleCommerce is entitled to refer to services to be provided or provided for the customer on its own website and in its own documents when indicating references for advertising purposes and to use the customer's logo and company name (possibly abbreviated) for this purpose.

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§ 8 TERMINATION AND SETTLEMENT

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Upon termination of the contract, the customer has a claim against ScaleCommerce for the release of all data, documents and materials in its possession which contain business, organizational or technical data or information from or about the customer to the customer or, at the customer's request, to destroy them, unless statutory retention periods conflict with this, it is ScaleCommerce's intellectual property or the data, documents, etc. to be released or destroyed are still required by ScaleCommerce for the further execution of the contract.

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§ 9 CHANGES TO THE SUBJECT MATTER OF THE CONTRACT (CHANGE REQUEST PROCEDURE)

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(1) The customer can make changes to the quantitative scope of the contractually agreed services (such as the storage space used, number of CPU cores or amount of RAM as well as the number of systems of a type (e.g. app server, database slave server, etc.)) at any time himself or have them made by ScaleCommerce. Such change requests are to be directed directly via the ticket system or Slack. Change requests are accepted around the clock and processed on working days, Monday to Friday between 9:00 a.m. and 6:00 p.m.

(2) Content changes to the agreed service (i.e. such as the use of additional offers) can also be ordered via the ticket system or Slack. Such a change request must contain at least the following information:
- Description of the desired change
- Purpose of the desired change
- Special circumstances and backgrounds to be considered with regard to the desired change
- Urgency of the desired change

(3) The customer must bear the expenses arising from the change request. This includes in particular the expenses for examining the change request, preparing a change proposal and any downtimes. The hourly rate applicable for this is based on the price list valid at the time of conclusion of the contract.

(4) ScaleCommerce is entitled to change or deviate from the scope of services to ensure the provision of its services and, in particular, to activate larger volumes without first being explicitly commissioned by the customer to do so. ScaleCommerce will notify the customer of such changes immediately after their implementation. The customer can reject the changes or deviations or additional services provided after notification. If the customer does not object to the changes or deviations after appropriate notification by ScaleCommerce within two weeks of receipt of the notification, ScaleCommerce will bill the services provided according to the applicable price list and the change, deviation or additional service provided is approved. The customer's objection must be made in written form (email, fax, letter, ticket system).

(5) If the service catalog must be amended due to a failure by the customer to provide cooperation, in particular due to the correction of information already provided up to acceptance or as a result of the submission of information, this shall be deemed a change in service pursuant to this § 9.

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§ 10 GENERAL PROVISIONS

(1) The contractual language is German.

(2) German law shall apply exclusively to legal disputes arising from or in connection with this contract, excluding legal provisions that refer to another legal system. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

(3) Place of performance is ScaleCommerce's registered office in Berlin.

(4) Place of jurisdiction for legal disputes arising from or in connection with this contract is ScaleCommerce's registered office in Berlin.

(5) Should individual provisions be or become invalid, the validity as a whole shall not be affected hereby. The invalid provision shall be deemed replaced by one which comes closest economically to the sense and purpose of the invalid provision in a legally effective manner. The same applies to any gaps in the regulations.

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PART 2: ADDITIONAL, SPECIAL CONDITIONS

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§ 1 HOSTING

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1. Services of ScaleCommerce

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(1) ScaleCommerce assumes no responsibility for the success of the respective access to the website, unless only the network operated by ScaleCommerce, including the interfaces to third-party networks, is used.

(2) ScaleCommerce gives the customer the possibility of access to the server at any time. For this purpose, ScaleCommerce provides the customer with appropriate access data.

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2. Availability

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The web server is operational 24 hours a day, seven days a week, with an availability of 99.9% on an annual average. This does not include downtime due to maintenance and software updates, as well as times when the web server cannot be reached via the Internet due to technical or other problems that are not within ScaleCommerce's sphere of influence (force majeure, fault of third parties, etc.). The software and hardware used by the customer or its own external technical infrastructure can also have an impact on ScaleCommerce's services. Insofar as such circumstances have an impact on the availability or functionality of the service provided by ScaleCommerce, this has no effect on the contractual conformity of the services provided.

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3. Obligations of the Customer

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(1) Should disruptions occur when using the server, the customer will inform ScaleCommerce of these disruptions without delay. If the customer fails to provide this cooperation, § 536c BGB shall apply accordingly.

(2) The customer is obliged to keep the access data secret from unauthorized third parties and to change passwords regularly. The customer undertakes to inform ScaleCommerce immediately as soon as he becomes aware that unauthorized third parties know the password. Unauthorized third parties do not include persons who use the storage space that is the subject of this contract with the knowledge and will of the customer.

(3) The customer assures that he will not store any content on the contractual storage space and place it on the Internet, the provision, publication and use of which violates legal prohibitions, public morals and the rights of third parties. The customer is obliged to set up and manage his servers in such a way that the security, integrity and availability of the networks, other servers, as well as software and data of third parties or ScaleCommerce are not endangered. ScaleCommerce is entitled to discontinue its services with immediate effect or to block access to the customer's information in the event of a violation of one of the aforementioned obligations. A violation by the customer of the above-mentioned obligations entitles ScaleCommerce to extraordinary termination.

(4) The customer assures that the information provided by him is correct and complete. He undertakes to inform ScaleCommerce immediately of any changes to the contact details communicated and other data required for the execution of the contract.

(5) The customer is responsible for regularly backing up his data, unless otherwise agreed between the parties. In the event of data loss caused by ScaleCommerce, ScaleCommerce's liability is therefore limited in amount to the costs that would have arisen if the customer had properly backed up the data.

(6) In the event that the parties agree on a server location outside the Federal Republic of Germany in a third country, the customer undertakes to observe the applicable legal provisions of this third country.

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4. Temporary Suspension

(1) ScaleCommerce may temporarily interrupt the connection of the website to the Internet (blocking of the website) if there is sufficient suspicion of illegal content on the website within the meaning of Part 2 § 1 (3) 3 of these conditions, the customer is in default of payment or if there is a danger to the security of the server of other customers from the customer's server.

(2) The blocking is, if technically possible and reasonable, to be limited to the allegedly infringing content. The customer must be informed immediately of the blocking, stating the reasons, and requested to remove the allegedly illegal content or to demonstrate and, if necessary, prove the legality or to make the outstanding payments immediately.

(3) The blocking is to be lifted as soon as the suspicion has been invalidated or the payment has been made or ScaleCommerce has had the opportunity to terminate the contract extraordinarily due to the customer's behavior.

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5. Granting of Rights by the Customer

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Insofar as the customer provides ScaleCommerce with protected content (e.g. graphics, trademarks and other content protected by copyright or trademark law), he grants ScaleCommerce the temporally limited to the duration of the contract, non-transferable, limited to the location of the respective server (for backup copies: to the place of their storage), non-exclusive right to reproduce the protected content for the purposes of this contract on the server, on another server used for mirroring, and on a sufficient number of backup copies. Insofar as protected content is held in cache by third parties after termination of the contract, this storage is no longer attributed to ScaleCommerce.

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6. Liability for Defects and Other Performance Disruptions

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a. In the provision of storage space on the web server, ScaleCommerce excludes any liability independent of fault for initial defects of the web server. Later objections due to open or hidden defects are thus excluded.

b. Liability for interruption, disruption or other damage-causing events based on telecommunications services from ScaleCommerce or third parties for whom ScaleCommerce is liable is limited to the amount of possible recourse by ScaleCommerce against the respective telecommunications service provider. ScaleCommerce is not liable for the functionality of the telephone lines to the contractual server, in the event of power failures and in the event of failures of servers that are not within its sphere of influence.

c. ScaleCommerce is only liable for any damage, regardless of the legal basis, if it culpably violates an essential contractual obligation (cardinal obligation) in a manner that endangers the purpose of the contract or if the damage is attributable to gross negligence or intent. The limitation of liability also applies in the event of fault on the part of a vicarious agent of ScaleCommerce.

d. If the violation of an essential contractual obligation (cardinal obligation) is not grossly negligent or intentional, ScaleCommerce's liability is limited to such typical damage or such a typical extent of damage that was reasonably foreseeable at the time the contract was concluded.

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7. Contract Duration and Termination

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(1) Contracts are concluded for an indefinite period and can be terminated by both contracting parties with a notice period of 30 days to the end of the month. Termination must be made in written form (email, fax, letter).

(2) The right of each contracting party to terminate the contract extraordinarily and without notice if there is good cause remains unaffected. Good cause exists for ScaleCommerce in particular in each case in which

1. the customer is in arrears with the payment of the agreed remuneration for two consecutive dates or the customer has fallen into arrears with the payment of the remuneration in an amount corresponding to the remuneration for two months over a period extending over more than two dates;

2. the customer is insolvent or insolvency proceedings have been opened over his assets or the application for opening insolvency proceedings has been rejected for lack of assets; however, after an application to open insolvency proceedings over the customer's assets, ScaleCommerce may not terminate due to arrears with the payment of remuneration that occurred before the application for opening or due to a deterioration in the customer's financial circumstances;

3. the customer violates essential contractual obligations in accordance with Part 2 § 1(3) 3 of these conditions, in particular the contractual obligation to observe the law when using ScaleCommerce's contractual services, and does not remedy this violation immediately even after being warned or notified of the blocking of content by ScaleCommerce.

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§ 2 DOMAINS

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1. Subject Matter of the Contract

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(1) The subject matter of this contract is ScaleCommerce's services for registering the domain(s) desired by the customer and maintaining the registration.

(2) The domain(s) are/is assigned and managed by different – mostly national – organizations (registries) depending on their ending (top-level domain) on the basis of their own registration conditions. The responsible registry for .de domains is DENIC e.G. (www.denic.de). In the case of registration of the domain(s) for the customer, a contractual relationship is established between the customer and the respective registry on the basis of its registration conditions. The customer becomes the owner of the domain(s). ScaleCommerce does not become a contracting party of the registry, but acts as a representative (§ 164 BGB) for the customer. ScaleCommerce acts for the customer within the framework of a business management relationship for the registration and administration of the desired domain(s).

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2. Obligations of ScaleCommerce

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(1) Domain Registration

ScaleCommerce undertakes to check whether the domain(s) desired by the customer has/have already been assigned to third parties. It does not check at any time whether the registration of the domain for the customer violates third-party rights or contravenes general laws. ScaleCommerce does not owe the success of the registration, i.e. the actual registration of the domain(s). ScaleCommerce has no influence on the allocation practice of the registries. After domain registration, it therefore cannot influence that the requested domain(s) are actually allocated to the customer.

(2) Domain Administration

After registration of the domain(s) in the customer's name, ScaleCommerce is obliged to take all reasonable measures vis-à-vis the responsible registries and any intermediate registrars/providers to maintain the registration of the domain(s). ScaleCommerce does not owe the success of these measures, i.e. the actual maintenance of the registration.

(3) ScaleCommerce is the contact person for the registry with regard to the domains in question for the duration of this contract, insofar as these have been registered in the customer's name. In this respect, it acts as a representative (§ 164 BGB) of the customer vis-à-vis the registry.

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3. Obligations of the Customer

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(1) The customer is responsible for the selection of the character strings to be registered as domain(s). Before registration, he must check whether the registration and/or intended use of the domain violates third-party rights or contravenes general laws. The customer may only commission ScaleCommerce to register domains where, after examination, there are no indications of a violation of third-party rights or general laws. The duty to examine also exists for the period after registration of the domain(s).

(2) The customer is obliged to cooperate to a reasonable extent in all measures that are necessary with regard to the registration, maintenance of the registration and disposal of the contractual domain(s), in particular their transfer or the change of entries in the databases of the registries.

(3) The customer must inform himself sufficiently about which provisions apply to DENIC e.G. and all other registries responsible for the contractual domain(s) with regard to the rights and obligations of an Admin-C and the prerequisites for his appointment.

(4) The customer is obliged to inform ScaleCommerce immediately of changes to the data communicated.

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4. Liability, Warranty

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(1) For defects in its services, ScaleCommerce is liable in accordance with the statutory provisions of service contract law (§§ 611 ff. BGB).

(2) In the case of slight negligence, ScaleCommerce is only liable for the violation of essential contractual obligations, i.e. obligations whose fulfillment enables the proper execution of the contract and on whose compliance the contractual partner may regularly rely (cardinal obligations). It is liable for slight negligence, furthermore for personal injury and in accordance with the Product Liability Act. Otherwise, ScaleCommerce's pre-contractual, contractual and extra-contractual liability is limited to intent and gross negligence.

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5. Contract Duration, Termination

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(1) This contract is concluded for an indefinite period and can be terminated in writing by both parties – for the customer with a notice period of 14 days to the end of a calendar month, for ScaleCommerce with a notice period of 6 weeks to the end of a calendar quarter.

(2) Fees already due at the time the termination becomes effective are to be paid by the customer in full. Fees already paid and due will not be refunded – not even proportionately.

(3) The right of termination for good cause remains unaffected. There is good cause for termination of this contract for ScaleCommerce in particular if

1. the customer sustainably violates his obligations pursuant to § 4 of this contract,

2. the domain(s) is/are to be transferred to a third person or the registration is to be canceled due to a legally binding decision of a competent court or according to the Uniform Domain Name Dispute Resolution Policy (UDRP),

3. the customer does not comply with his obligation to pay despite a reminder and setting a deadline.

(4) After termination of the contract, ScaleCommerce is obliged to release the domain. For this purpose, it must make all declarations that the customer needs to make the necessary changes to the domain entries at the respective responsible registry. This applies in particular if declarations by ScaleCommerce are required to make changes to the name of the technical contact person ("Tech-C"), to the registered name servers, to the zone administrator ("Zone-C") and to the billing address ("Billing-Contact").

(5) ScaleCommerce's obligations pursuant to the above 4. only exist if the customer has fully fulfilled all payment obligations under this contract.

(6) At the latest with the release pursuant to the above 4., all rights of the customer under this contract expire.

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§ 3 SUPPORT/PERFORMANCE OPTIMIZATION

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(1) Subject to deviating provisions in a separate contract, the provisions of this § 3 apply in the event that the provision of support services is agreed.

(2) ScaleCommerce performs maintenance work or improvement measures in the event of occurring problems, disruptions or other difficulties. These exist when servers or software do not fulfill the contractually agreed functions.

(3) Reports about support cases are made via a ticket system, which can also be reached at support@scale.sc. Emergencies must additionally be reported by telephone at +49 30 555 722969 to ensure prompt support.

(4) ScaleCommerce provides support services Monday to Friday between 9:00 a.m. and 6:00 p.m. ("Service Time").

(5) The user reporting a support case provides as detailed a description as possible of the respective support case with each report to enable ScaleCommerce to eliminate errors as efficiently as possible. In particular, the work steps that led to the occurrence of the disruption, the form of appearance, and the effects of the disruption must be specified.

(6) Data Backup

The customer is responsible for proper data backup, especially before executing updates or upgrades and before performing troubleshooting work.

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§ 4 TRAINING / WORKSHOP

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(1) Scope of Services

As part of the training/workshops, the customer's employees are familiarized with the operation of the products. The details of the scope of services and the participation requirements are set out in the offer.

(2) Registration by the Customer

Registration is made by written confirmation (email, fax, letter) of ScaleCommerce's offer by the customer to ScaleCommerce.

(3) Cancellation of Training/Workshop by ScaleCommerce

In the event of short-term cancellation of training or a workshop by ScaleCommerce for good cause (e.g. illness of the trainer, force majeure), the customer has no claim for reimbursement of costs that have already been incurred in connection with the preparation of the training/workshop.

(4) Exchange of Participants, Cancellation by the Customer

The customer is entitled to register another employee instead of the registered participant until the start of the event, provided that he fulfills the requirements for the respective training or workshop according to the training program. In the event of cancellation of the registration up to 7 working days before the training date, no costs are incurred for the customer. In the event of cancellation from 6 working days before the start of the event, 50% of the course fee will be charged. In the event of non-participation, cancellation on the day of the event and in the event of partial participation, ScaleCommerce charges the full training fees plus the applicable statutory value-added tax. The customer reserves the right to prove to ScaleCommerce a higher share of saved expenses.

Berlin, 15.03.2023