1. Scope of Application

1.1. The MGT-COMMERCE GmbH, Mendelssohnstrasse 27, 10405 Berlin (hereinafter, “MGT-COMMERCE”) shall deliver its services exclusively on the basis of these general terms and conditions (“GTC”).

1.2. These GTC shall also apply for future software licensing, hosting, service plans and support agreements between MGT-COMMERCE and the customer, even if the terms are not again expressly agreed.

1.3. Terms and conditions of the customer that deviate from these GTC entirely or in part shall not become an integral part of the contract insofar as there is no express written consent of MGT-COMMERCE.

1.4. The GTC of MGT-COMMERCE shall also then apply when, in awareness of conflicting customer terms and conditions, services are rendered by MGT-COMMERCE without reservation.

2. Contract conclusion

2.1. The offer of MGT-COMMERCE is directed exclusively towards entrepreneurs and companies within the meaning of § 14 German Civil Code [Bürgerliches Gesetzbuch (BGB)].

2.2. The contract shall be concluded by acceptance of the customer’s contract offer (order) by MGT-COMMERCE. The acceptance shall either be expressly stated or must be recognized by MGT-COMMERCE upon commencing performance of the services.

2.3. MGT-COMMERCE may refuse conclusion of a contract with the customer in an individual case where an objective reason exists.

3. Subject Matter of the Agreement

MGT-COMMERCE’s performance obligations follow from the respective performance specifications and these GTC. Warranty

3.1. The customer must promptly notify MGT-COMMERCE of defects and provide customer’s best efforts in supporting a potential remedy of the defect, in particular taking all reasonable data security and back-up measures.

3.2. A guarantee of service availability free of interruption is not technically possible. The customer can expect an average monthly availability of services from MGT-COMMERCE at the delivery point into the Internet amounting to 98% over the year. This shall not apply upon the occurrence of technical or other problems that are outside the MGT-COMMERCE’s sphere of influence, for example, force majeure, third-party fault, disruptions or non-availability of the IT infrastructure outside of MGT-COMMERCE’s sphere of responsibility.

3.3. In the case of defects, the customer cannot reduce the ongoing payments. A potentially existing right to demand the return of payments subject to reservation of fees paid shall remain unaffected hereby.

4. Customer obligations

4.1. The customer must completely and truthfully provide all of the data required for performing the contract. This shall apply in particular for the name/company name, postal address and payment data.

4.2. Customer must promptly inform MGT-COMMERCE of changes to the data mentioned under No. (1).

4.3. It is incumbent upon the customer under customer’s own responsibility, if not otherwise agreed, to arrange for customary and reasonable security for use and access (access control measures).

4.4. Customer must routinely carry out back-ups of customer’s data, in particular before he installs and uses applications or extensions from manufacturers other than MGT-COMMERCE. This shall also apply if MGT-COMMERCE makes available an automated installation routine for third-party software.

5. Payment terms

5.1. The prices are understood to be net, exclusive of the statutory value added tax.

5.2. Prices independent of usage for the respective contract term are due and payable immediately prior to the activation of a chargeable service. Other prices, in particular usage-dependent prices, are due and payable subsequent to rendering the service.

5.3. Only the credit cards named on the website shall be accepted as a means of payment. The customer shall grant MGT-COMMERCE the appropriate debit authorization by providing the credit card information.

6. Default

6.1. The customer shall be in arrears in payment, even without a reminder, if the amount due cannot be charged to the credit card provided by the customer in favor of MGT-COMMERCE. An arrearage can be eliminated by the customer by initiating a successful payment process with the customer’s credit card in MGT-COMMERCE’s customer section.

6.2. MGT-COMMERCE is authorized to discontinue the performance of services due if the customer falls behind with a payment due in a significant amount of at least the price of a contract term, until the arrearage is eliminated. MGT-COMMERCE shall inform the customer of this consequence by email at least 5 work days prior to potential discontinuation of the service. In this case the customer remains obligated to pay the fees that are independent of usage.

6.3. If the customer falls behind with a payment due by more than 20 calendar days, MGT-COMMERCE can terminate the contractual relationship on extraordinary grounds and close the customer account. MGT-COMMERCE shall inform the customer of this potential consequence via email at least 5 working days prior to closing the account so that the customer can eliminate the arrearage and secure customer’s data.

6.4. MGT-COMMERCE complies with MGT-COMMERCE’s obligations to provide notice for preparing to- or carrying out discontinuation of service if MGT-COMMERCE sends the respective communications about this via email to the email address provided by the customer. It is the customer’s responsibility to ensure the accessibility of the email address provided by customer and that the email account is being checked at least daily.

6.5. Other statutory and contractual rights of MGT-COMMERCE in connection with the customer’s default in payment shall remain unaffected hereby.

7. Right of use

7.1. The customer shall receive the nonexclusive right of access via the Internet—restricted in time to the period of use or the contract term—to the software functionalities according to these GTCs and the license provisions of the third-party software offerer. The customer shall not receive any rights extending beyond this.

7.2. The customer is not authorized to use the software outside of the use described in this contract or to allow use by third parties or access by third parties. In particular customer is not permitted to duplicate or sell the software or parts thereof.

8. Term, termination

8.1. The contract term between MGT-COMMERCE and the customer shall be 30 days subsequent to the service being made available or a change in rate. The contract term shall be automatically extended by an additional 30 days subsequent to expiration of the contract term if the contract has not been previously terminated.

8.2. The contract is cancellable without giving reasons by both parties at any time during a period of 30 days to the end of the month, but at the earliest on expiry of the minimum contract period stipulated in the contract.

8.3. The customer must undertake a termination for convenience online in the customer area (https://www.mgt-commerce.com/login/), by open a support ticket with a cancelation request. MGT-COMMERCE will promptly confirm the cancelation with all details.

8.4. The parties reserve the right to an extraordinary termination for good cause. A good cause reason exists for MGT-COMMERCE in particular if the customer,

a. is in default with a payment due in a significant amount of at least one contract term fee, or

b. does not truthfully and correctly provide his address or payment data and proper processing of the contract is not possible, or

c. despite being provided notice, culpably violates a material contractual obligation.

Notice may be dispensed with if, due to the violation of an obligation by the customer, the continuation of the contract on the part of MGT-COMMERCE is unreasonable.

8.5. It is incumbent upon the customer to secure customer’s data prior to the end of the contract when a termination has occurred.

9. Liability

9.1. MGT-COMMERCE shall be liable for damages in the case of intentional acts and gross negligence, as well as for the absence of a guaranteed characteristic.

9.2. In the case of ordinary negligence, MGT-COMMERCE shall be liable without limitation in the case of injury to life, the body and health. Otherwise, MGT-COMMERCE shall only be liable for ordinary negligence if an obligation is violated the fulfillment of which allows performance of the contract in the first place, the violation of which jeopardizes achievement of the contract’s purpose, and upon the observance of which the customer can regularly rely (cardinal obligation). For violation of a material obligation, liability is limited to the damages that are typically foreseeable for the contract.

9.3. MGT-COMMERCE’s liability for compensatory damages irrespective of fault (§ 536a BGB) for defects present upon the contract being concluded is excluded. The MGT-COMMERCE’s fault-based liability remains unaffected hereby.

9.4. The above-referenced limitations on liability shall also apply for violations of the obligations of the MGT-COMMERCE’s legal representatives and vicarious agents.

9.5. Liability according to the German Product Liability Act (“Produkthaftungsgesetz”) shall remain unaffected of the above-referenced limitations on liability.

9.6. MGT-COMMERCE shall not be liable for damages resulting from the equipment failure of other offerers or errors and incompatibility of the software of third-party offerers, insofar as not otherwise agreed.

10. Miscellaneous provisions

10.1. Verbal side agreements shall only apply if a confirmation in writing is carried out by MGT-COMMERCE.

10.2. MGT-COMMERCE can assign its rights and obligations arising from this contract to one or more third parties (transfer of the contract). The customer has the right in the case of contract transfer to terminate the contract without notice.

10.3. German law shall apply excluding UN sales law for the contractual relationship of the contracting parties.

10.4. The venue for all claims arising from the contractual relationships between the contracting parties and disputes resulting therefrom shall be the company seat of MGT-COMMERCE.

10.5. Should individual provisions of this GTC be or become legally invalid as to their entirety or in part, the validity of the remaining provisions is unaffected thereby.