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 techni