for the Shopando GmbH cloud store system
Status: October 1, 2022
1 Scope of application
2 Contract language
3 Applicable law, place of jurisdiction and place of performance
4 Cloud store system (CLOUD)
5 Conclusion of contract & Technical requirements
6 Sales via the web store
7 Termination
8 Termination of the agreement
9 License fees, commission & taxes
10 Rights & Obligations of the user
11 Prohibition of circumvention
12 Duty to provide information, communication & Confidentiality
13 Reservation of rights
14 Intellectual property of user content
15 Advertising
16 Warranty and liability
17 Technical availability, maintenance & Force Majeure
18 Additional offers
19 Final provisions
1 Scope of application
1.1
This user agreement of Shopando GmbH, FN 513822 x, Business Park 10 / Top 49, 8200 Gleisdorf (hereinafter referred to as "SHOPANDO"), in the version valid at the time of conclusion of the contract/registration, applies to the cloud store system (hereinafter referred to as "CLOUD") www.shopando.com. By concluding the contract/registering, the business user (iF USER) agrees to this user agreement. This user agreement applies to all future transactions with users, even without further express agreement. Amendments and supplements to the user agreement, verbal agreements and (general) terms and conditions submitted by the user that deviate from the content of this user agreement shall only become effective upon written confirmation by SHOPANDO.
1.2
SHOPANDO reserves the right to change this user agreement at any time. This user agreement as amended can be viewed on SHOPANDO in printable form and is available as a PDF file. Changes are valid from the day of publication. If the user continues to use the services of SHOPANDO after an amendment to the user agreement, the user agrees to the amendment unless the user objects within one month of publication. In the event of an objection, the previous user agreement applies. In this case, SHOPANDO is entitled to terminate the user agreement with the user within two weeks of receipt of the objection for good cause. Excluded from this, however, are such changes that relate to the essential contents of the contract.
2 Contract language
The contract language is German. All other information and transactions are offered in German. Documents in other languages are for information purposes only.
3 Applicable law, place of jurisdiction and place of performance
This user agreement and the contracts to be concluded including this user agreement are subject to Austrian substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The exclusive jurisdiction of the competent court in relation to the registered office of SHOPANDO is agreed.
4 Cloud Shop System (CLOUD)
4.1 General information on the SHOPANDO reseller structure
4.1.1
SHOPANDO is the developer and operator of the CLOUD, through which users are given the opportunity to create largely personalized online web stores (hereinafter referred to as "web store") integrated in the CLOUD and to resell these to their own clients (reseller system). These clients can use the web stores created by the User to sell goods and/or services to their own customers (hereinafter referred to as "Customer"). A contract for the use of this cloud service or the CLOUD is concluded between SHOPANDO and the user with this user agreement. The contract between users and their own clients is not part of this user agreement. Users are therefore generally liable themselves for agreements that they make with their clients when reselling stores.
4.1.2
SHOPANDO provides the user with tools in the CLOUD with the help of which users can create their own, fully comprehensive and largely personalized web stores. Since Shopando is designed as a reseller system, the creation of web stores is not intended for the user to sell the goods and/or services himself via these web stores, but as a reseller to resell the created web stores to his own clients - usually online retailers or online store operators. This reseller structure is supported by SHOPANDO in the form of rebilling options. The respective functions and their scope of services as well as costs can be called up and viewed by registered users at admin.shopando.store and are considered an integral part of this agreement. SHOPANDO reserves the right to change, expand or discontinue functions at any time, insofar as these do not relate to the essential contents of the contract.
4.1.3
The user can choose between various business models, which can be called up and viewed at admin.shopando.store and are considered part of this agreement. The user can create several web stores.
4.1.4
SHOPANDO is not itself the operator of the web stores. SHOPANDO only takes over the technical organization of a sales opportunity in the form of the cloud store system functionality for the users. The contract regarding the (sales) purchase of goods and/or services - including all rights and obligations arising therefrom - is concluded between the users' clients and their customers. Technical protection devices may not be circumvented by the user.
4.2 Use
When using the CLOUD, the User must observe the applicable legal norms and protect the rights of third parties. In particular, the User is prohibited from infringing third-party property rights such as trademarks, copyrights and naming rights when using the CLOUD; from distributing or otherwise disseminating offensive, defamatory or otherwise criminally relevant content; unreasonably harass third parties in violation of data protection or competition law, for example by sending unsolicited advertising (spam), using mechanisms, software and/or scripts that go beyond the functions and interfaces provided, in particular if this blocks, modifies and/or overwrites services or functions of the CLOUD, and these services are necessary for the contractual use of the CLOUD and to attempt to impair the CLOUD or the content accessible in it by data modification, computer sabotage, falsification of evidentiary data, suppression of evidentiary data, computer fraud, spying on data, interception of data or other criminal offenses. The user shall be responsible for observing the import and export regulations applicable to the deliveries or services. In the case of cross-border deliveries or services to the User's customers, the User shall bear any customs duties, fees, taxes and other charges incurred. The user shall handle legal or official procedures in connection with cross-border deliveries or services on its own responsibility.
4.3 Free test period when creating web stores
SHOPANDO offers the possibility to create web stores without any immediate costs. Layouts and functions can be created and tested. However, real sales cannot be made by the user or their client and access to the store system for the user's customers is not permitted during the free trial period. The period of free use for setting up, creating and testing as well as the ongoing costs for the use of the selected scope of services for a web store are visible to users in the admin system at admin.shopando.store and are part of the agreement. At the latest one month before the end of the free trial period, the user will be informed of the expiration date and also that after this date the costs will be invoiced in accordance with the selected scope of services.
4.4 Beta versions
SHOPANDO can offer the user - for test purposes - to use preliminary/beta functions that are still under development. Supplementary user agreements, which SHOPANDO sends to the user on occasion before the use of such preliminary/beta functions, may apply. Irrespective of the validity of the present user agreement, users may only publicly disclose information on the use of these preliminary/beta functions with the prior written consent of SHOPANDO. SHOPANDO in no way guarantees that the pre/beta functions will work. SHOPANDO may discontinue the pre/beta functions at any time at its own discretion. SHOPANDO assumes no liability for damages resulting from or in connection with a pre/beta function.
4.5 Third party applications
The CLOUD may also include interaction with third-party applications. SHOPANDO will provide the user with an interface for contracts with third parties - insofar as this has been agreed separately - and support the user in concluding contracts with third parties. If no separate agreement exists, it is the responsibility of the respective user to create the necessary conditions for interaction with third-party applications. However, SHOPANDO is not involved in any contracts with third parties.
5 Conclusion of contract & Technical requirements
5.1 Conclusion of contract
5.1.1
The use of the CLOUD to its full extent and in particular the provision of web stores as well as the execution of goods/service purchases and orders via the web store are only possible with the prior conclusion of a contract by registration of the user. In the course of the registration process, the user must confirm that he/she creates and uses SHOPANDO's web stores exclusively for the exercise of his/her business activities; use for family or private purposes is not permitted.
5.1.2
After successful registration and confirmation of the contract by SHOPANDO, the contract is concluded and the user can log in to his account using his e-mail address and password. SHOPANDO expressly reserves the right to accept or reject a registration without giving reasons. SHOPANDO must be informed immediately of any changes to the data. Registration with incorrect data is not permitted and will result in immediate exclusion. Multiple registration is prohibited.
5.1.3
Users are obliged to ensure and take all necessary measures to ensure that the registration or access data is not made accessible to third parties. SHOPANDO only checks whether the password matches the password chosen by the user. SHOPANDO is under no further obligation to check. Anyone who logs in to the CLOUD with the user's (secret) password is considered authorized to use the cloud system to the extent that the user is authorized to use it. Users are also obliged to inform SHOPANDO immediately of any unauthorized access to the access data by third parties and any misuse of the account. SHOPANDO is entitled to block the user area until the risk of misuse has been eliminated.
5.1.4
The user or his client is responsible for all activities and content such as photos, images, videos, graphics, written content, audio files, code, information or data that are uploaded, recorded, generated, stored, displayed, distributed, transmitted or displayed on or in connection with his web store. The user shall ensure that the identity of each individual store operator (including the official name of the company including the company register number - if available - to which the web store belongs) is clearly displayed in the web store (imprint obligation) and that the persons concerned are provided with a data protection information sheet/data protection declaration.
5.1.5
If SHOPANDO accepts a registration, the user will be given access to his own user area, in which the user can provide access to his own clients and upload goods and/or services in the web store and process and view orders. The user can manage all his data in connection with the CLOUD via this user area. SHOPANDO is entitled to inform all registered users about changes and extensions to the store system by e-mail or telephone.
5.1.6
The user can - depending on the chosen business model - also create several user accounts and grant other persons access to his user area. The user shall be responsible and liable for the acts, omissions and failures to act resulting from the use of employee accounts to comply with the obligations under these User Terms and Conditions in the same way as for his own acts, omissions or failures to act.
5.1.7
A breach of any of the above conditions entitles SHOPANDO to extraordinary termination of the contract for good cause.
5.2 Technical system requirements
In order for the user to be able to use the CLOUD to the agreed extent, he must create the necessary (system) requirements. If the User has not created the (system) requirements, the CLOUD cannot be used or can only be used with errors. SHOPANDO is not liable for any resulting damage/additional amount.
5.3 Order processing contract
At the same time as concluding this user agreement, the user concludes an order processing contract with SHOPANDO. In this respect, SHOPANDO processes the data provided by the user or his customers within the framework of this order processing contract.
6 Sales via the web store
6.1
The goods and/or services offered in the web store are sold exclusively by the user's customers. Neither SHOPANDO nor the user are therefore sellers themselves, but organize the processing of the (sales) purchase exclusively between the store operator and its customers. The regulations for (sales) purchases between users and clients must be agreed between the user and his clients.
6.2
At the same time as the customer orders goods via a web store of a user or his client, a commission claim of SHOPANDO comes into being between SHOPANDO and the user. In any case, a purchase by a customer via the web store constitutes an earning of SHOPANDO.
7 Termination
7.1
The contract can be terminated at any time at the end of the current month of use by both parties in writing (e.g. by e-mail or by post) with a one-month notice period, unless additional existing agreements on the use of web stores conflict with these deadlines. Termination for good cause remains unaffected by this. There is no (pro rata) claim to reimbursement of fees and also no claim to the transfer or storage of any data created by the user or his clients or imported into SHOPANDO on the part of the user or his clients. After lawful termination, the irrevocable deletion of data is provided for in accordance with the GDPR.
7.2
In addition to the use of SHOPANDO, the user concludes additional agreements in the SHOPANDO admin system by creating his own web stores, which may contain their own notice periods. All agreement details for the created web stores (such as free trial periods, costs for the selected scope of services, sales commissions, notice periods, etc.) are made between the user and SHOPANDO in the admin system.
7.3
Outstanding amounts owed by the user to SHOPANDO for the use of the CLOUD up to the effective date of termination or dissolution are immediately due in full and invoiced.
8 Termination of the agreement
8.1
SHOPANDO may block the user's access to the CLOUD upon termination of the agreement. Support services in connection with the termination of the contract, in particular the provision of data, will only be provided by SHOPANDO by separate agreement.
8.2
Upon termination of the contractual relationship, SHOPANDO will not store all data of the user as well as such data that the user receives in the context of the web store offers/sales after termination of the agreement. The customer must back up all his data during the notice period.
9 License fees, commission & taxes
9.1 License fees
9.1.1
The user undertakes to pay SHOPANDO the agreed monthly license fee for the use of the cloud service or the CLOUD as well as commissions for the sales made by the user's web stores. The commission is calculated on the basis of the turnover of the sales made via the user's web store. For the additional use of further products or services of SHOPANDO (extensions) a fee is to be paid according to a separate agreement. All essential or generally applicable fees and costs for the provision of services by SHOPANDO can be accessed and viewed by registered users at admin.shopando.store at any time and are part of this agreement.
9.1.2
The user must select one of the payment methods offered during registration. The authorized payment method shall be used to pay the respective fees and commissions until the contract is terminated and all outstanding fees have been paid in full. A subsequent change of payment method is possible in agreement with SHOPANDO. All fees are stated in euros and all payments are made in euros. If no payment options have been selected, payment by invoice is deemed to have been agreed.
9.1.3
License fees are invoiced by SHOPANDO in advance at the beginning of each month of use. The prices stated by SHOPANDO are net prices excluding VAT plus taxes, fees, duties, etc. The invoice will be sent to the user via the e-mail address provided. In addition, the invoice is stored in the customer's user area. Upon receipt of the invoice, it must be paid within one week without deduction. Payments by the user have only been made when SHOPANDO can dispose of the payment amount without reservation.
9.1.4
Any (additional) expenses incurred by SHOPANDO for services that are not covered by the fees according to this user agreement will be invoiced separately to the user.
9.1.5
If the fees cannot be collected with an authorized payment method of SHOPANDO, SHOPANDO will try to collect the fees again after three days. If the second attempt is unsuccessful, SHOPANDO will make a final attempt three days after the second attempt. If the last attempt is unsuccessful, SHOPANDO has the right to block the user and thus access to the web store. The user can be reactivated by SHOPANDO as soon as the user has paid the outstanding fees plus all fees for the next billing cycle. If the outstanding fees have not been paid after 30 days from the date of blocking, SHOPANDO reserves the right to terminate the user and delete all of the user's data. Any resulting additional costs shall be borne by the user.
9.1.6
The user is only entitled to offset if the counterclaims have been legally established, recognized by SHOPANDO or are undisputed. The user is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
9.1.7
Without limiting other remedies, SHOPANDO may block or terminate the User if SHOPANDO has reason to believe that the User or the User's client (through conviction, settlement, insurance or investigation of trust assets or otherwise) is attempting or is about to commit fraudulent acts in connection with the CLOUD.
9.2 Entitlement to commission
In order to determine the sales-related commission, SHOPANDO is entitled to collect the user's web store turnover relevant for determining the commission at any time and to process it for billing purposes. The commission claim arises with the order of the goods by the user's customer. Commission fees are invoiced by SHOPANDO on a monthly basis. In the event that orders are canceled, the commission claim remains in full, unless the user or his client (store operator) notifies SHOPANDO of the cancellation within 3 months of the order.
9.3 Taxes & Duties
The user and his clients are responsible for the payment of all statutory taxes, fees and duties. If SHOPANDO charges such taxes, they will be calculated using the tax rates based on the billing address provided by the user and will be billed by SHOPANDO using the payment method authorized by the user. The user must provide appropriate proof if they are exempt from paying taxes. The tax exemption only applies from the date on which SHOPANDO receives sufficient proof of tax exemption. If the user is not charged taxes by SHOPANDO, it is the responsibility of the user to check whether taxes must be paid. In this case, the user must pay the taxes himself.
10 Rights & Obligations of the user
10.1
SHOPANDO grants the user a simple, temporal, spatially unlimited right of use for the term of the contract, limited to the use of the services provided in the CLOUD for his own business purposes for the intended and contractual use of the CLOUD. No further rights are granted.
10.2
The User shall not use the CLOUD to directly or indirectly develop or improve a comparable service or product itself or through third parties.
10.3
The User must comply with applicable law, protect the rights of third parties and take reasonable precautions against the loss of its content in the CLOUD. The User is responsible for complying with the legal provisions relating to the content posted by the User in the CLOUD. The user may not use the CLOUD for illegal or unauthorized purposes, nor may he violate the laws of his own country or the destination country when using the offer. If the user does not fulfill his obligations despite SHOPANDO's request - granting a reasonable grace period - SHOPANDO is entitled to extraordinary termination of the contract for good cause. The same rights also apply to SHOPANDO if a client of the user commits one of the violations listed here.
10.4
The CLOUD also contains third-party open source software (hereinafter referred to as "OSS"). In deviation from this user agreement, the user shall only receive such rights of use to this OSS as result from the license conditions applicable to the OSS. At the user's request, SHOPANDO will inform the user which OSS is contained in the CLOUD under which license conditions, if this is not already clear from a document provided to the customer with the CLOUD or from documentation belonging to the CLOUD.
10.5
The user undertakes not to reproduce, duplicate, copy, sell, resell or exploit any part of the CLOUD and SHOPANDO's offer, its use or access to it.
10.6
The User shall not - without express permission - acquire search engine or pay-per-click keywords (such as Google Ads) or domain names containing SHOPANDO and/or variants and misspellings thereof.
10.7
Claims for defects are excluded unless the defect was fraudulently concealed. Any use of the CLOUD contrary to this user agreement immediately terminates the right to further use of the CLOUD and in this respect SHOPANDO is entitled to an extraordinary right of termination for good cause.
10.8
The user agrees that the use of the CLOUD is limited to a reasonable number of stored images and data, in accordance with the fair use principle. The fair use principle refers to reasonable and proportionate use that does not cause an excessive load on the system. The user undertakes to use the system resources in good faith and not to take any action that could compromise the integrity of the store system. The provider reserves the right to charge additional fees or to restrict use.
11 Prohibition of circumvention
12.1
The user must provide SHOPANDO with all necessary information and facts truthfully. Changes in circumstances, in particular changes in data (name, address, e-mail, payment data) should be brought to SHOPANDO's attention immediately. The user is obliged not to make any false statements in his profile and in the other areas of the CLOUD. SHOPANDO reserves the right to terminate the existing user agreement with immediate effect in such a case.
12.2
Communication between SHOPANDO and the user takes place primarily via the e-mail address provided by the user during the registration process. If the user changes his e-mail address, he must inform SHOPANDO immediately.
12.3
The user is obliged to treat the data and information that he/she becomes aware of within the framework of the user agreement, including that of other users and their goods/services, etc., confidentially and not to pass it on to third parties, unless such a transfer is necessary for contractual fulfillment or is required by law.
13 Reservation of rights
13.1
SHOPANDO reserves the right to change or discontinue the offer at any time for any reason and without notice. Excluded from this, however, are such changes/settings that relate to the essential contents of the contract. SHOPANDO is not obliged to make all offers or functions available in the same or equivalent form in all countries. SHOPANDO can refuse a person its offer at any time for any reason.
13.2
SHOPANDO is entitled to remove materials and block or terminate users if SHOPANDO determines that the goods/services offered via the respective web store or the materials uploaded or published in a web store violate this user agreement. Customer-side information or materials are not pre-screened by SHOPANDO and it is at SHOPANDO's sole discretion to refuse or remove any materials, including an entire Web Shop.
13.3
SHOPANDO is entitled to make the same offers in the CLOUD available to competitors of the user or their clients. No user is granted exclusive use of the CLOUD.
13.4
In the event of disputes regarding the ownership of the web store or the user area, SHOPANDO reserves the right to request documents to determine or confirm this. These documents may include, but are not limited to, a copy of a business license, an official photo ID, the last four digits of the credit card on file, etc. SHOPANDO reserves the right, in its sole discretion, to determine rightful ownership and transfer a User Area to the rightful User. If SHOPANDO, without prejudice to its other rights and remedies, is unable to determine the rightful owner of the User Area, SHOPANDO reserves the right to temporarily deactivate a User Area until the parties to the dispute have reached a resolution.
13.5
SHOPANDO shall receive from the User exclusive rights of use for all known and unknown types of exploitation, unlimited in terms of territory, time and content, to any feedback from the User in connection with the use of the CLOUD. SHOPANDO does not owe any remuneration for this transfer of rights. The user ensures that he is also entitled to this transfer of rights for his employees and any other users of the CLOUD.
13.6
SHOPANDO is entitled to transfer the usage contracts concluded with the user to third parties in whole or in part or only because of individual rights from these contracts. If the third party is a company affiliated with SHOPANDO, the transfer is also effective without the consent of the user. Otherwise SHOPANDO will inform the user of the intended transfer in text form in good time. If the user objects to the transfer, it will not become effective.
13.7
The user can only assign rights from the contract with SHOPANDO to third parties with the consent of SHOPANDO. SHOPANDO will only refuse consent for good cause.
13.8
SHOPANDO is further entitled to have all services to the user fulfilled by assistants. The contract between the customer and SHOPANDO remains unaffected by this.
14 Intellectual property of user content
14.1
SHOPANDO reserves ownership rights and/or copyrights to its own illustrations, drawings, calculations and other documents. This also applies to written documents which SHOPANDO designates as "business secrets" or "confidential information". Such documents may only be passed on to third parties with the prior express consent of SHOPANDO in text form.
14.2
The user retains the (intellectual) property rights to all data uploaded to the CLOUD. SHOPANDO does not claim any intellectual property rights to the materials that the user makes available to SHOPANDO. All data uploaded by the user remains the property of the user. The user can remove his web store at any time by deleting his account.
14.3
By uploading data, the User agrees that he allows other (Internet) users to view and access the data published in his web store; that SHOPANDO may store his data and, if the User has published this data, display and use it; that SHOPANDO may check and delete all data transmitted to the CLOUD at any time, although SHOPANDO is not obliged to do so. The user is responsible for ensuring that the data complies with all applicable laws or regulations.
14.4
SHOPANDO supports the protection of intellectual property. SHOPANDO also expects its users to behave accordingly when creating and publishing content in the web store and investigates suspected copyright infringements. SHOPANDO provides a separate form at https://www.shopando.com/geistigeseigentum so that information and complaints about possible copyright infringements by a web store can be transmitted to SHOPANDO from the CLOUD and actively investigated.
15 Advertising
The user grants SHOPANDO a non-exclusive right and license to use the user's names, trademarks, service marks and logos associated with the web store to advertise SHOPANDO. The user also grants SHOPANDO the right to name him or his clients as reference customers.
16 Warranty and liability
16.1
The user uses the CLOUD and all associated offers at his own risk. A usage agreement for the cloud is concluded between SHOPANDO and the user. For defects in the goods/services of the users or a defective fulfillment of the contract by the respective user himself, the user alone is responsible within the framework of the relevant contractual relationship. The customer must address all resulting claims to the respective user; however, this does not lead to the termination and/or rescission of the user agreement concluded with SHOPANDO. SHOPANDO is not liable for the offers of the users or the contract processing between user and customer.
16.2
SHOPANDO is merely the manufacturer and operator of the CLOUD and therefore assumes no responsibility for the content of the users, the failure or conclusion of the contract with their customers, its proper fulfillment or any deficiencies in performance. These claims of the customer are to be directed directly against the respective user. SHOPANDO is only liable for content created and published by SHOPANDO itself.
16.3
SHOPANDO's liability for damages in connection with the use of the CLOUD is limited to intent and gross negligence and at most up to the fair market value of the services used by the Customer. In particular, SHOPANDO is not liable for any loss of earnings incurred by the user as a result of a failure of the CLOUD. SHOPANDO's liability for financial losses (property damage) caused by slight negligence is excluded. In addition, SHOPANDO is only liable for typical and foreseeable damages, i.e. those that could reasonably be expected to occur at the time of conclusion of the contract according to the circumstances known at that time. Claims arising from (consequential) damages as well as from damages for which the customer can obtain insurance cover or which are controllable by the customer, from other indirect damages and losses or loss of profit as well as generally mere financial losses, in particular from defective, omitted or delayed provision of services, are expressly excluded. Damages in connection with the CLOUD shall become time-barred within six months of knowledge of the damage and the damaging party.
16.4
The User undertakes to indemnify and hold SHOPANDO and (where applicable) its parent company or subsidiaries, affiliates, SHOPANDO partners, officers, executives, agents, employees and suppliers harmless in respect of any claims or demands (including reasonable legal fees) made by third parties arising out of the User's breach of this User Agreement.
16.5
Third-party content is only stored by SHOPANDO and, if necessary, processed automatically in connection with the services available in the CLOUD. SHOPANDO has no knowledge of the third-party content. SHOPANDO does not select or otherwise control the third-party content. Nor does SHOPANDO supervise the user or issue instructions to the user.
16.6
Content, websites or third-party products that are not operated by SHOPANDO can be accessed or integrated via links or functionalities in the CLOUD. SHOPANDO is not responsible for such content, websites and third-party products.
17 Technical availability, maintenance & Force Majeure
17.1
Users and their customers acknowledge that SHOPANDO does not provide any specific server capacities for the platform and that the service also depends on the Internet connection of the users and their customers. The infrastructure of the CLOUD is only designed for availability that is customary in the industry and market. SHOPANDO does not guarantee permanent availability of the CLOUD. The CLOUD is particularly unavailable during routine, necessary and planned maintenance work. As far as possible, necessary maintenance and repair measures will be announced in good time on the website or by e-mail. However, unavailability due to technical faults is possible at any time. The user must also accept longer periods of unavailability.
17.2
For the transmission of data between users or their customers and SHOPANDO, unsecured connections are sometimes used, as well as connections that do not allow a return channel. It is not possible for SHOPANDO to determine whether and which data has been changed during transmission. SHOPANDO rejects any warranty, liability and costs for connection errors and misuse by third parties. SHOPANDO does not warrant that the services will be uninterrupted, timely, secure or error-free, or that the results that may be obtained from the use of the CLOUD will be accurate or reliable. SHOPANDO strives to minimize the likelihood of errors and misuse by using current technologies. SHOPANDO does not guarantee that the CLOUD will be available at all times.
17.3
SHOPANDO's CLOUD is provided as so-called "Software as a Service" (SaaS). The software is regularly maintained and requires updates. Updates are changes to the CLOUD through which its functionality is changed with the aim of improving the offer or solving a specific problem. Updates may also serve to adapt the CLOUD to changed legal requirements. However, the user is not entitled to this. SHOPANDO installs updates itself via the CLOUD. The installation of updates as well as support and consulting services or the provision of new software generations are not owed by SHOPANDO. The user has no claim to new software generations or updates on certain dates or within certain periods of time.
17.4
SHOPANDO will use its best efforts to provide updates that correct serious errors in the CLOUD or extensions. Specific response or recovery times are not promised.
The user acknowledges that updates from SHOPANDO can only be tested for standard installations. In particular, no side effects that have an impact on customer settings can be tested. A promise that an update will change the functionality of the CLOUD in every detail is expressly not given.
With the installation of updates, the user receives the same rights of use as for the CLOUD for which the update was installed.
17.5
Force majeure or other unforeseen obstacles in the sphere of SHOPANDO release it from compliance with the agreed obligations. In particular, operational and traffic disruptions, improper performance by subcontractors, transport interruptions or production stoppages are also considered force majeure; for the duration of the aforementioned hindrance, SHOPANDO is released from the obligation to provide services without the customer being entitled to a price reduction or other compensation.
18 Additional services
18.1 Domain service
18.1.1
As part of the CLOUD, SHOPANDO also offers to register domains for users or their clients. SHOPANDO is free to apply for the registration of the domain directly with the registry or via an intermediate registry (third-party provider). The user undertakes to pay SHOPANDO an annual flat fee for each domain to be registered for him, payable for each commenced contractual year of each registered domain. The first billing period begins with the registration of the respective domain.
18.1.2
SHOPANDO is the contact partner of the registry for the domain registered on behalf of the user for the duration of the usage agreement. SHOPANDO checks whether the domain requested by the user has already been assigned to a third party. If the check shows that the domain requested by the user has not yet been assigned to a third party, SHOPANDO will initiate the necessary measures to register the domain in the name of the user with the relevant registry (domain registration). If the check reveals that a domain requested by the user has already been assigned to a third party, SHOPANDO will inform the user of this. SHOPANDO has no further obligations with regard to the already assigned domain. SHOPANDO is not responsible for the success of the registration, i.e. the actual registration of the domain. SHOPANDO has no influence on the allocation practice of the allocation offices and therefore cannot influence the actual allocation of the requested domain to the user after the domain registration.
18.1.3
SHOPANDO does not check at any time whether the registration of the domain for the user violates the rights of third parties or general laws. Should third parties assert claims against SHOPANDO due to possible legal violations resulting from the registration and/or use of the contractual domain, the user is obliged to indemnify SHOPANDO from any liability and to reimburse SHOPANDO for the costs incurred as a result of the claim. The obligation to indemnify against costs includes in particular the obligation to indemnify SHOPANDO against necessary legal defense costs (e.g. court and lawyer's fees).
18.1.4
The domain service contract is concluded for a period of one year from the registration of the domain. With the purchase of a domain name via SHOPANDO, the domain registration is preset so that it is automatically renewed every year as long as the user offers goods/services via the CLOUD. The user confirms that it is his sole responsibility to deactivate the automatic renewal if he no longer wishes to use the domain. Any fees already due at the time the termination takes effect must be paid in full by the user. The right of termination for good cause remains unaffected. An important reason for SHOPANDO to terminate this additional service exists in particular if the user has to transfer his domain to a third party due to a legally binding decision of an ordinary court or according to the Uniform Domain Name Dispute Resolution Policy (UDRP), if the registration is to be canceled or if the user does not fulfill his obligation to pay according to the agreement with SHOPANDO despite a reminder and setting a deadline.
18.1.5
After termination of the contract, SHOPANDO is obliged to release the domain. For this purpose, SHOPANDO will make all declarations required by the user to make the necessary changes to the domain entries.
18.2 Offers and services from third-party providers
18.2.1
SHOPANDO may also recommend offers (products, services, website links, etc.) from third-party providers to the user in connection with the CLOUD, enable access to them or activate them. These offers are only made available to the user as a service. If the user purchases, uses or accesses them, this is done exclusively between the user and the respective third-party provider.
18.2.2
SHOPANDO assumes no warranty and makes no assurances with regard to third-party providers. The User acknowledges that SHOPANDO has no control over and is not responsible or liable for the availability, terms of contract and terms of use of Third Party Providers. The User acknowledges that SHOPANDO may disable access to Third Party Providers via the CLOUD at any time at its sole discretion and without notice to the User.
18.2.3
If necessary, the user is obliged to seek advice from specialists before using or accessing offers and services from third-party providers for which he/she receives access via the CLOUD.
18.2.4
If the user installs an offer from third-party providers or activates third-party providers for use, he thereby grants SHOPANDO permission to allow the respective third-party provider to access the user's data and to take other measures that are necessary for the compatibility of the third-party provider with the cloud store system. Any exchange of data or any other interaction between the user and the third-party provider shall take place exclusively between the user and the third-party provider.
18.2.5
is not responsible for any disclosure, modification or deletion of the User's data or for any corresponding loss or damage suffered by the User as a result of a Third Party Provider's access to the User's data. The relationship between the user and the third-party provider is exclusively between the user and this third-party provider. SHOPANDO is not obliged to intervene in disputes between the user and the third-party provider.
18.2.6
SHOPANDO shall under no circumstances be liable for direct, indirect, incidental, special, consequential, extraordinary exemplary, punitive or other damages arising from the User's contractual relationship with Third Party Providers. These limitations apply even if SHOPANDO has advised the customer of the possibility of such damages. The above limitations apply to the maximum extent permitted by law.
18.2.7
The User agrees to indemnify and hold SHOPANDO and (to the extent applicable) its parent company, affiliates, SHOPANDO partners, officers, directors, agents, employees and suppliers harmless from and against any claims or demands (including reasonable attorneys' fees) arising out of or relating to the cooperation with Third Party Providers.
19 Final provisions
19.1
There are no verbal collateral agreements to this agreement. Any amendments and additions to this agreement must be made in writing. This shall also apply to any agreement to deviate from this formal requirement.
19.2
The invalidity of a provision of this user agreement shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by an economically equivalent or similar but permissible provision.