General terms and conditions
Preamble
branchbob GmbH operates an e-commerce platform on the basis of its self-developed software solution “branchbob”. This provides Merchants the opportunity to create their own web stores via the e-commerce platform, whereby the Merchants are able to host all data related to the items they sell via their web store. branchbob GmbH also collaborates with third parties who are connected via interfaces. branchbob offers the opportunity to acquire additional themes and apps via the platform in addition to the use of the basic platform version.
A. General terms
1. Scope and modification of these General Terms and Conditions
1.1 All services provided by branchbob GmbH are offered exclusively on the basis of these General Terms and Conditions. They form an integral part of any and all agreements concluded between branchbob GmbH and the relevant Contractual Partner with regard to the services it offers. These also apply to all future supplies of goods and services or offers to the Contractual Partner even if not separately agreed again.
1.2 Terms and conditions of the Contractual Partner shall not apply even if branchbob GmbH has not specifically objected to their application in any specific case.
1.3 branchbob GmbH may modify these General Terms and Conditions on six weeks’ notice. The Contractual Partner agrees that it may be informed of changes to these General Terms and Conditions by email sent to the most recent email address provided to branchbob GmbH. If the Contractual Partner does not object to the announced change within one month of receipt of notice in writing or by email, the amended General Terms and Conditions are deemed to have been approved by the Contractual Partner. When giving notice, branchbob GmbH will inform the Contractual Partner that the change will become effective if it does not object within four weeks of receipt of such notice.
2. Contracting parties
A contract is concluded between branchbob GmbH and Merchants (“Merchant”) and/or Developers (“Developer”) of software applications (“Expansion”) as well as Themes (Merchants and Developers are collectively referred to herein as a “Contractual Partner” or a “Partner”). Contractual Partners of branchbob may only include entrepreneurs as defined in section 14 of the German Civil Code (BGB), public-law legal entities and public-law special funds.
3. Subject matter of the contract; Registration
3.1 The subject matter of the contract is the
Transfer of the “branchbob” software (hereinafter referred to as “Software”) for use via the internet;
· Provision of storage space on servers of and by branchbob GmbH for purposes of operating a web store in accordance with the respective offerings of branchbob GmbH;
and
· The purchase of Expansions and Themes from Developers;
· As well as the sale of Expansions and Themes to Merchants in its own name for its own account.
Part “A. General terms” applies to all contractual relationships between branchbob GmbH and its Contractual Partners. The specific terms of Parts B–D apply on a supplementary basis.
3.2 In order to register with branchbob GmbH, the Merchant enters its store name along with its email address and a password and states that it agrees to these General Terms and Conditions. All other data can be entered in the store management section at a later time. The Merchant completes an online registration form.
4. Offers from a Contractual Partner and conclusion of contract
The registration form completed by the Contractual Partner represents a request to conclude a contract with branchbob GmbH. branchbob GmbH may accept or reject this request within a period of two weeks of receipt of the Contractual Partner’s application. The application is deemed to have been accepted if branchbob GmbH does not respond within this two-week period.
5. Duties of the Contractual Partner
5.1 The Contractual Partner is obligated to provide truthful information to branchbob GmbH, in particular to provide truthful answers in response to questions about its details and to provide notice to branchbob GmbH of any changes to its details, in particular changes to its email address. Provided that the Partner has not provided new details to branchbob GmbH, in particular no new email address, branchbob GmbH is entitled to send communications and declarations of intent to the last-known address and last-known email address.
5.2 The Contractual Partner is solely liable for content it places in its web store, in particular product descriptions, images, etc. In particular, it is liable for ensuing that the content of its web store or any Expansion does not infringe the rights of third parties and, in particular, may not offer any domains or contents that are racist, deny the Holocaust, glorify war or contain pornography or any other content that violates the Youth Protection Act (Jugendschutzgesetz). This applies likewise in cases where access is provided to such content via hyperlinks or other connections placed by the Contractual Partner on third-party websites. On first demand, the Contractual Partner must indemnify and hold branchbob GmbH harmless against all third-party claims (including but not limited to administrative agencies) asserted against branchbob GmbH by such third parties related to content on the web store developed and operated by the Contractual Partner or any Expansion, in particular with regard to claims alleging copyright infringement, trademark infringement or a breach of the German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb). This right of indemnification also applies to attorney’s fees, court costs, witness fees and expert witness fees incurred by branchbob GmbH. branchbob GmbH is not obligated to permit third parties referred to above to commence legal proceedings nor is it obligated to initiate legal proceedings itself against such third parties nor to seek legal remedies or lodge appeals.
5.3 The Contractual Partner is liable to branchbob GmbH in the case of any unauthorized use of its user identification and log-in data. Merchants are prohibited from sharing their user identification and log-in data with third parties.
6. Liability on the part of branchbob GmbH
6.1 branchbob GmbH is not liable for the content of a Merchant’s store, in particular not for any potential violations of applicable law by the Merchant’s web store.
6.2 In all cases of contractual and non-contractual liability, branchbob GmbH will pay compensation for damages exclusively subject to the following limits:
· Without limitation in the case of intent and gross negligence and in the absence of a quality for which the seller has assumed a guarantee;
· In the case of simple negligence, solely in relation to a breach of an essential contractual obligation and, in such cases, limited to foreseeable damages typical to the contract;
6.3 The limitations on liability set out in Section 6.2 do not apply to liability for personal injury and liability under the Product Liability Act (Produkthaftungsgesetz).
6.4 branchbob GmbH is not liable for compliance with applicable laws in the front-end of the web store; this falls within the Merchant’s scope of responsibility and, in case of doubt, is to be set up by the Merchant using the pre-set functions or the code.
7. Jurisdiction and applicable law
7.1 German law applies exclusively subject to the exclusion of the United Nation Convention on Contracts for the International Sale of Goods (CISG).
7.2 The exclusive place of jurisdiction for all disputes arising under, or in connection with, this contract is the location of branchbob GmbH’s head office in Mannheim, Germany. In the event branchbob GmbH files suit, it is also entitled to select the Contractual Partner’s place of jurisdiction.
7.3 No verbal ancillary agreements have been concluded. Amendments, additions and addenda to this contract are valid only if they are agreed between the contracting parties in writing. This also applies to the waiver of this contractual provision.
7.4 If any provision of this contract is or becomes invalid, this shall not affect the validity of the remaining contract as a whole. The contracting parties are obligated to replace any such invalid provision with a valid provision that comes as close as is possible to achieving the business purpose of such invalid provision. The foregoing shall apply in like manner in the event of a loophole in this contract.
B. Special terms for SaaS services
1. Software licensing
1.1 For the duration of the contract term, the customer will have access to the most current version of the “branchbob” software via the internet at no charge. In order to enable such access, branchbob GmbH will load the software onto a branchbob GmbH server. This is accessible to customers via the internet.
1.2 The current functional scope of the software is described in the most recent functional specification on the branchbob GmbH website. branchbob GmbH reserves the right to expand, restrict or modify gratuitous services included within the functional scope at any time.
1.3 The point of transfer for the software is when it leaves the router at branchbob GmbH’s data center.
2. Provision of storage space
2.1 The customer will be provided defined storage space on branchbob GmbH’s servers in order to store its data. The customer may store content on this server up to the amount permitted by the technical specifications of the software. branchbob GmbH will inform the customer if this storage space is no longer sufficient for purposes of storing data. Subject to availability, the customer may purchase additional storage space for a fee.
2.2 branchbob GmbH attempts to maintain availability of this data 24 hours a day, seven days a week via the internet, but does not, however, guarantee this.
3. Rights to use the software
3.1 The customer is granted a non-exclusive right to access the “branchbob” software via the internet limited in duration to the term of the contract. This right includes the use of services provided by branchbob GmbH via common web browsers in accordance with the terms of the contract.
3.2 The customer is not entitled to use the software beyond the uses permitted under these General Terms and Conditions or to permit it to be used by unauthorized third parties or to provide access to it by unauthorized third parties.
3.3 The customer grants branchbob GmbH rights of use in content that it has transferred to the storage space granted under Section 6 in connection with use of the software to the extent needed to perform this agreement. However, in any event, the customer remains the sole owner of such data and may at any time, in particular upon termination of the contract, demand the return of specific or all data without any right of retention on the part of branchbob GmbH. Data will be returned by means of transmission via a data network. The customer has no right to receive the software suitable for the use of the data.
4. Interruption/impairment of availability
4.1 Adjustments, changes and additions to the SaaS services covered by the contract, as well as measures that serve to identify and remedy functional interruptions, will only lead to a temporary interruption or impairment of availability.
4.2 The basic functions of the SaaS services are monitored on a daily basis. Scheduled and announced maintenance work does not count as downtime.
4.3 To the extent possible, branchbob GmbH endeavors to perform required maintenance work at times that will impair the operation of the Merchant’s web store as little as possible. In addition, branchbob GmbH endeavors to ensure the highest possible availability of the servers. branchbob GmbH is authorized to restrict the Merchant’s access to branchbob GmbH’s services if necessary to maintain network integrity or secure operations or in order to avoid serious disruptions.
5. Grant of rights to content placed in the web store by the Merchant to branchbob GmbH
Upon inputting content into the web store created by the Merchant based on the branchbob GmbH online platform, the Merchant grants to branchbob GmbH a gratuitous, non-exclusive, revocable, unrestricted, sub-licensable, worldwide right of use to all such content input by branchbob GmbH. The foregoing right of use includes, but is not limited to, use online, in telemedia, in the press, on television and on the radio.
6. Contract term
6.1 This contract is concluded for an indefinite term.
6.2 The contract may be terminated by branchbob GmbH and the Contractual Partner at any time on four weeks’ written notice.
6.3 This is without prejudice to the right to terminate the contract without notice for good cause.
6.4 The Merchant’s access to the branchbob GmbH e-commerce platform ends on the date of contract termination. At such time, all rights of use granted to the Merchant by branchbob GmbH likewise lapse on such date. Following the date of contract termination, the Merchant may no longer use the web store created and operated by it on the branchbob GmbH e-commerce platform. Following the contract termination, branchbob GmbH is no longer obligated to maintain or provision the Merchant’s data. Sixty days following termination of this contract, branchbob GmbH will permanently and irrevocably delete data remaining on branchbob GmbH’s servers if and to the extent that neither law nor regulation impose a mandatory retention period or the data is needed for remaining contract processing with the Merchant.
7. Blocking the Merchant web store by branchbob GmbH
7.1 branchbob GmbH is entitled to block the online store of the merchant in case of a serious or despite warning repeated violation of the merchant against one of the obligations mentioned in these General Terms and Conditions. A blocking of the online store is permissible without further ado if the merchant provides false information regarding personal data, company data, bank connection data or his credit card.
7.2 It is no longer possible for the Merchant to use the web store if blocked by branchbob GmbH. All rights of use granted to the Merchant by branchbob GmbH lapse at such point in time.
C. Special terms for leasing and purchasing Expansions and Themes
1. Terms of lease and purchasing
1.1 For purposes of re-sale to Merchants, branchbob GmbH leases and buys Expansions and Themes from Developers who expand the functions of the platform.
1.2 Developers may place Expansions and Themes on the platform for sale to branchbob GmbH. Placing items on the platform is deemed to be an offer to branchbob GmbH to conclude a contract. branchbob GmbH will approve an Expansion for marketing on the platform by branchbob GmbH following a review of the Expansion concerned. However, approval does not represent an acceptance of the contract. If a Merchant buys an Expansion via the platform, branchbob GmbH sends confirmation (“credit note”) to the Developer and places this in the Developer’s account. This results in the conclusion of a contract.
2. Compensation
2.1 Unless agreed otherwise, compensation between branchbob GmbH and the Developer amounts to 70% of the respective end price. The Developer sets the end price for its Expansion on the platform itself.
2.2 Payments will be made via the means of payment provided in the Developer’s account.
3. Grant of rights
3.1 The Developer grants branchbob GmbH the exclusive right to distribute the Expansions and Themes, i.e. to sell and market them. branchbob GmbH is authorized to grants rights of use in the Expansions and Themes to Merchants for consideration and to transfer ownership of copies of software products provided to them.
3.2 branchbob GmbH will transfer the Expansion to the Merchants according to the provisions of the following license terms set out in Section 3.2.1–3.2.3.
3.2.1 In exchange for the agreed compensation, the Merchant will receive a simple (non-exclusive) right to use the transferred Themes permanently (purchase) and to use the transferred Expansions for a limited time (lease).
3.2.2 The Merchant is permitted to make changes, Expansions and other adaptations to the Themes. The Merchant is not entitled to any independent rights of use and exploitation in any such modifications beyond the rights of use granted in this contract.
3.2.3 If the Developer provides supplements (e.g. patches, updates) or a new version (upgrade) of Expansions and Themes to the Merchant in the course of an attempt at cure or in the course of maintenance that replace earlier versions of Expansions or Themes, such replacements are then subject to the provisions of this agreement.
3.3 branchbob GmbH will distribute the Expansions under the protected product and brand names. For such purposes, the Developer grants branchbob GmbH a simple, non-exclusive right limited in duration to the term of this contract, to the signs, names and trademarks of the Developer for purposes of marketing the Expansions.
4. Maintenance and support
4.1 The Developer will provide any and all support to branchbob GmbH end customers in relation to Expansions created by the Developer. The Developer will include contact information, in particular an email address and telephone number, in its branchbob account for such purposes.
4.2 In particular, the Developer will be the sole contact person for warranty claims by the Merchants. It consents to acting as the sole party against whom any and all warranty claims are to be asserted by Merchants and, to such an extent, will indemnify and hold branchbob GmbH harmless as to all third-party claims. The Developer will provide warranty coverage in relation to the Merchants subject to the provisions of Sections 4.3–4.7.
4.3 Pursuant to application provisions of the law of sales, the Developer warrants the agreed quality of the contractual products and that use of the contractual products by the Merchant in accordance with the contract does not conflict with any third-party rights.
4.4 The Developer will initially provide warranty coverage for material defects in the form of an attempt at curing the defect. At its option, it will provide the Merchant a new, defect-free software release or will remedy the defect; the defect is also deemed to have been remedied if the Developer provides the Merchant reasonably acceptable work-around options.
In the event of defects in title, the Developer will first provide warranty coverage by attempting to cure such defect. In doing so, it will – at its own discretion – provide the Merchant an option for using the supplied contractual product free of the defect in title or the option to use a replacement contractual product or a modified contractual product of equivalent value.
4.5 The Merchant is obligated to accept a new software release provided that the contractually agreed functionality is maintained. This is without prejudice to the Merchant’s rights under section 439 of the German Civil Code.
4.6 If an attempt at cure fails, the Merchant is authorized to set a reasonable grace period for resolution of the respective defect. In doing so, the Merchant is required to state expressly and in writing that it reserves the right to revoke the contract and/or demand compensation for damages in the event an additional attempt at cure fails.
If an attempt at repair fails during the grace period as well, the Merchant may revoke the contract or reduce compensation provided that the defects are more than minor. Following expiration of the deadline set pursuant to sentence 1, the Developer may demand the Merchant to exercise its rights arising upon expiration of the deadline within two weeks of receipt of such demand. The right to make an election passes to the seller upon expiration of the deadline.
4.7 The limitation period for all warranty claims is one year and commences upon delivery and/or provisioning (as well as notification of the Merchant thereof) of the contractual products.
5. Duties of the Developer
5.1 The Developer will not otherwise distribute Expansions it places on the platform nor will it offer, or have them offered, for sale on other platforms.
5.2 The Developer agrees to maintain Expansions, to provide updates and to assume the obligation to provide support to the Merchants.
D. Special terms related to the lease and sale of Expansions and Themes
1. Terms of lease and sale
1.1 Merchants may lease and buy Expansions and Themes via the platform. The content and scope are specified in the relevant offer. The source code for the respective Expansions is not part of the transaction; by contrast, the source code for the respective Theme is part of the transaction.
1.2 The price is specified in the relevant offer. All prices are subject to statutory value-added tax.
1.3 The functional description contained in the offer is conclusive with regard to the quality of Expansions and Themes supplied by branchbob GmbH. branchbob GmbH is not liable for any other qualities related to the Expansions. In particular, the Merchant may not derive any such obligation from other descriptions of the enhancements in public statements or advertising by branchbob GmbH, nor from its employees or sales partners unless branchbob GmbH expressly confirmed additional qualities in writing.
2. Grant of rights
2.1 branchbob GmbH grants the Merchant the following rights in the developments:
2.2 The use of Expansions and Themes is only permitted insofar as this is necessary for use in accordance with the contract.
2.3 The Merchant is authorized to make changes, Expansions and other adaptations to the Themes. The Merchant is not entitled to any independent rights of use and exploitation in any such modifications beyond the rights of use granted in this contract.
2.4 If the Developer provides supplements (e.g. patches, updates) or a new version (upgrade) of Expansions or Themes to the Merchant in the course of an attempt at cure that then replace earlier versions, such replacements are then subject to the provisions of this agreement.
3. Payment terms
3.1 The Merchant must pay the price indicated in the offer. The price is due for payment immediately if the offer provides for a one-time payment.
3.2 If the offer provides for a monthly fee, the fee is due and payable in advance upon issuance of the invoice. Recurring services will be debited automatically at the beginning of the month using the means of payment indicated by the Merchant.
4. Duties of the Merchant
4.1 The Merchant has familiarized itself with the essential functions of the Expansions and the Themes and bears the risk that they may not conform to its wishes and requirements.
4.2 The Merchant bears the risks and additional costs of any violation of these duties.
5. Warranty
5.1 The assertion of rights and claims related to defects requires the Merchant to have complied with its inspection and notification duties under section 377 of the German Commercial Code (HGB). The Merchant is required to provide written notice of defects without undue delay following their discovery.
5.2 The warranty is provided by the respective manufacturer (“Developer”) of the Expansion. Accordingly, the Developer is the contact person for the Merchant with regard to any warranty and support questions.
5.3 The Merchant agrees that the respective Developer is the sole party against whom any warranty and liability claims are to be asserted in relation to the purchase of an Expansion. The Developer will provide warranty coverage subject to the provisions of Sections 5.4–5.8.
5.4 The Developer warrants the agreed quality of the contractual products and that use of the contractual products by the Merchant in accordance with the contract does not conflict with any third-party rights.
5.5 The Developer will initially provide warranty coverage for material defects in the form of an attempt at curing the defect. At its option, it will provide the Merchant a new, defect-free software release or will remedy the defect; the defect is also deemed to have been remedied if the Developer provides the Merchant reasonably acceptable work-around options.
In the event of defects in title, the Developer will first provide warranty coverage by attempting to cure such defect. In doing so, it will – at its own discretion – provide the Merchant an option for using the supplied contractual product free of the defect in title or the option to use a replacement contractual product or a modified contractual product of equivalent value.
5.6 The Merchant is not obligated to accept new versions of the Themes. This is without prejudice to the Merchant’s rights under section 439 of the German Civil Code. The use of prior versions is not covered by warranty. When accepting new versions of the Themes, the Merchant is required to transfer any modifications to prior Themes to the new version itself.
5.7 If an attempt at cure fails, the Merchant is authorized to set a reasonable grace period for resolution of the respective defect. In doing so, the Merchant is required to state expressly and in writing that it reserves the right to revoke the contract and/or demand compensation for damages in the event an additional attempt at cure fails.
If an attempt at repair fails during the grace period as well, the Merchant may revoke the contract or reduce compensation provided that the defects are more than minor. Following expiration of the deadline set pursuant to sentence 1, the Developer may demand the Merchant to exercise its rights arising upon expiration of the deadline without two weeks of receipt of such demand. The right to make an election passes to the seller upon expiration of the deadline.
5.8 The limitation period for all warranty claims is one year and commences upon delivery and/or provisioning (as well as notification of the Merchant thereof) of the contractual products; the same period applies for other claims against branchbob GmbH regardless of their nature.
5.9 If the Merchant makes changes to a Theme, the warranty lapses with regard to such Theme in the case of doubt unless the Merchant can show that the defect was not caused by any changes it made.
Status: 14.05.2020
