INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS Terms), valid as of: April 2018 Page 1 of 6 §1 Subject Matter and Contract Documents These Terms of Intershop Communications AG (INTERSHOP) shall regulate rendering of Cloud or CaaS (Commerce as a Service) Services and any associated services by or on behalf of INTERSHOP for cloud based online presence of a contractor of INTERSHOP (Customer). Such Cloud Services chosen by a Customer may include infrastructure application management, Software as a Service. Such CaaS Services chosen by a Customer may include infrastructure application management Software as a Service Definitive scope of services as well as any applicable contractual documents are defined by an individual specific contract including its annexes and attachments (Contract). Customer shall not be entitled to specific hardware or software specially allocated to him. § 2 Responsibilities of INTERSHOP INTERSHOP shall render the Cloud or CaaS Services described in more detail in the Contract. INTERSHOP shall be entitled to commission third party companies or affiliated companies as sub-contractors for provision of the Cloud or CaaS Services, or parts of them. § 3 Term and Termination 3.1 Term 3.1.1 The term of the Cloud or CaaS Services or parts of them is defined in the Contract. Should no regulation exist, the term shall be 36 months. 3.1.2 Term shall commence upon the date of making the Cloud or CaaS Services available as notified by INTERSHOP after closing of a Contract, which date shall be within a period of 3 months of closing of a Contract. In the event this date of making services available as given by INTERSHOP is beyond this period, Customer shall have a right to terminate with good cause. 3.1.3 Unless otherwise set forth in the Contract, term of Cloud or CaaS Services shall expire after the term set forth in the Contract, and shall be automatically renewed by the minimum term of the relevant Infrastructure Package, unless the Contract is terminated with 8 weeks’ notice until the end of the applicable term. The term for Application Management services corresponds to the term of the relevant Infrastructure Package. 3.2 Termination with Good Cause 3.2.1. Termination with good cause by the Parties shall remain unaffected. 3.2.2 A good cause for INTERSHOP will be in particular assumed if Customer is in default with payment of two consecutive monthly payments for Cloud or CaaS Services, or a material portion of it (> 20 %); Customer is in default for more than two deadlines with payment of monthly costs which exceed an amount that equals the double amount of monthly costs; Customer stops his business operations, dissolves his business or is insolvent, or if insolvency, bankruptcy or similar proceedings are pending relating to its assets for a period of more than ten working days; in connection with rendering of Cloud or CaaS Services rights of any third party are violated and thus rendering of contractually agreed services or parts of them is temporarily impossible or possible only to a very limited extent; Customer misuses Cloud or CaaS Services, in particular if he uses them for distribution of racist, sexist, criminal or otherwise discriminating contents, or if he has such contents distributed, or if he violates applicable laws, statutory or authority bans, or violates public morals or public order; Customer materially jeopardizes Cloud or CaaS Services by neglecting duties of care imposed on him, or if he unlawfully lets any third party use them. 3.2.3 A good cause for Customer will be in particular assumed if INTERSHOP after notification by Customer in accordance with item 5.1.2 below, is unable to remedy a defect within an appropriate time-limit, and Customer cannot be expected to be bound by the Contract any longer; the date for making the services available given by INTERSHOP is beyond the period set forth in item 3.1.2 above. 3.3 Consequences of Termination 3.3.1 In the event of termination, INTERSHOP shall surrender to Customer the entire current customer data as incurred in the course of fulfilling this Contract one week prior to the end of term, at the latest. Such data shall be INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS Terms), valid as of: April 2018 Page 2 of 6 made available by INTERSHOP to Customer in a common data file format of its choice. 3.3.2 Any further provision of data shall be considered as additional service and will be charged additionally. 3.3.3 Any statutory obligations to retain data or records on part of INTERSHOP shall remain unaffected. 3.4 Written Form Requirement Any termination notice requires written form (personal signature of undersigning person is required). 3.5 Delivery by Registered Mail Termination notices shall be served by registered mail for purpose of evidence. § 4. Prices and Terms of Payment 4.1 Remuneration Remuneration may be a one-time payment, recurring payments and/or usage-based. Details are set forth in a Contract. 4.2 Payment Invoices shall be due and payable without deduction upon receipt. Unless otherwise agreed in writing, recurring payments shall be invoiced in advance on a monthly basis. Usage-based Remuneration shall be charged the following month as a rule. 4.3 VAT Remuneration agreed in a Contract shall be excluding applicable statutory VAT, if nothing to the contrary has been stipulated. 4.4 Default 4.4.1 In the event Customer is in default with payments, INTERSHOP shall be entitled to claim default interest in the statutory applicable amount above the basic interest rate. INTERSHOP shall reserve the right to claim higher interest upon presenting proof of higher interest damages. 4.4.2 If Customer is in default with payment of contractually agreed remuneration, INTERSHOP, notwithstanding any further rights, may restrict and/or block use of Cloud or CaaS Services by Customer after respective written notification of Customer. 4.5 Set-Off/ Retention Customer shall only be entitled to set-off or retain payments if his counter-claim is undisputed or has been finally determined by a binding court order. § 5. Warranty and Safety 5.1 Contents 5.1.1 INTERSHOP shall warrant that any Cloud or CaaS Services are rendered with appropriate care and technical expertise in accordance with major aspects of relevant service specifications. However, according to state-ofthe-art standards it is impossible to exclude any errors in IT components under all application conditions. INTERSHOP shall therefore neither warrant uninterrupted nor trouble-free use of Cloud or CaaS Services. System availability rate owed by INTERSHOP shall base on the service specifications included in a respective Contract. 5.1.2 Customer shall notify INTERSHOP immediately of any possible disturbances of Cloud or CaaS Services, however, within two weeks of becoming aware of them at the latest; such notification must be made in writing in form of a detailed description of such disturbance. If no such notification is made, any claims and rights relating to such default, as far as such was recognizable for Customer, shall be excluded. 5.1.3 Upon notification in accordance with section 5.1.2 above, INTERSHOP shall be given the opportunity to remedy such default. If a remedy is materially successful, a possible violation of obligation on part of INTERSHOP shall be considered remedied. If, however, such default cannot be remedied within a reasonable period of time, Customer shall be entitled to terminate the relevant part of the Contract or the entire Contract for good cause, if the Customer cannot be expected to be bound by the entire Contract any longer (please see section 3.2.3 above, first subsection). If INTERSHOP is responsible for a default, Customer may claim, instead of or in addition to termination, reimbursement of damages incurred in the extent set forth in section 9 below. 5.1.4 Any claims and rights in connection with a default shall be time-barred after six months of the date when such default has been objected to for the first time, or should have been objected to in accordance with item 5.1.2 above. 5.1.5 In all other respects, a warranty period of 12 months shall apply. 5.2 Safety Customer understands and acknowledges that INTERSHOP does not have any control of data transmission via telecommunication facilities, including the internet, beyond the interface between the network data processing centre and internet service providers. In this regard, INTERSHOP shall have no liability for data transmission, in particular for the following disturbances or errors: INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS Terms), valid as of: April 2018 Page 3 of 6 minimum availability or available capacity (neither quality-wise nor time-wise) relating to connectivity (connection paths); trouble-free data transmissions, procedures, possible loss and/or garbling of data in connection with their transmission. INTERSHOP shall therefore neither warrant secure operations of Cloud or CaaS Services, nor prevention of disturbances affecting the Cloud or CaaS environment or Customer components by any third party. For the rest, the regulations included in the service specifications shall apply. § 6. Confidentiality 6.1 Confidential Information; Business and Trade Secrets INTERSHOP and Customer shall be under an unlimited secrecy obligation to keep confidential any confidential information or business and trade secrets marked as such which come to the attention of INTERSHOP and Customer respectively in the course of the fulfilment of a Contract. Any disclosure to any third party which is not associated with fulfilment of a Contract shall only be made after written consent given by the respective other Party. 6.2 Exceptions Such secrecy obligation shall not apply to INTERSHOP to the extent ideas, concepts, know-how, technologies and data are concerned which relate to software set-up, provision of software or Cloud or CaaS Services respectively, and which are already known to INTERSHOP, or have already been known outside this Contract. 6.3 Responsibilities of Employees and Other Persons Relating to Secrecy INTERSHOP and Customer shall ensure that any persons involved in the fulfilment of this Contract shall be bound by an obligation to comply with these provisions. 6.4 Personal Data INTERSHOP shall be authorized to process or have processed by third parties personal data entrusted to them basing on this Contract in accordance with data protection provisions. In the event personal data are processed, the Parties shall close a separate agreement. 6.5 Telecommunication Secrecy INTERSHOP and Customer each shall inform their employees about compliance with the telecommunication secrecy obligation pursuant to § 88 TKG [= German Telecommunications Act]. For the purpose of fulfilment of this Contract INTERSHOP shall be entitled to perform any technically required processing activities, e.g. duplicating of data sets in order to prevent losses, readout of log files etc., as far as such is necessary, and only if this does not result in a content changes of data, and if it is in the interest of the Customer. 6.6 Protection of Access Data for Cloud or CaaS Services Personal access data shall not be disclosed or forwarded by Customer to any third party and shall be kept protected against any unauthorized access or use. § 7. Rights of Use 7.1 Purchase of INTERSHOP Software The provisions agreed between Customer and INTESHOP in a licencing agreement shall apply to INTERSHOP‘s standard software. Unless otherwise agreed in writing, Customer shall be granted a simple, non-exclusive right to use for the term of the Contract, as far as such is required for use of Cloud or CaaS Services. 7.2 CaaS Services As part of the provision of CaaS Services, the Customer is granted a temporary, non-exclusive right of use to access the online shop and any adjustments that may have been made for the duration of the CaaS Agreement concluded between the Customer and INTERSHOP, and to use the functionalities associated with the online shop in accordance with the agreement concluded using a browser. No further rights shall be granted to the Customer, in particular with regards to Intershop standard software (operating software), customization services (i.e. individually created software) or other tools used by INTERSHOP to provide services (such as image server, mail server, Jira) or the hardware used. The customer is not entitled to make the online shop and possible adjustments available to third parties in any way and/or to have it used by third parties and/or otherwise have it made accessible to third parties. In particular, the customer is not permitted to duplicate, sell and/or rent and/or lease the online shop and/or parts or adaptations thereof for a limited period of time. 7.3 Third Party Software Relevant provisions of a service provider (e.g. Microsoft Azure) shall apply to third party software. § 8. Intellectual Property Rights 8.1 Customer’s Duty to Inform Customer shall agree to immediately inform INTERSHOP about any violation of protective rights by any third party, and to provide any records and information required for prevention. 8.2 Indemnification by INTERSHOP 8.2.1 In the event after closing of a Contract violations of copyrights, trademarks, patents or other commercial or intellectual property INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS Terms), valid as of: April 2018 Page 4 of 6 rights are claimed, and if contractually agreed use of Cloud or CaaS Services is thus impaired or prevented, INTERSHOP shall indemnify Customer against any and all such claims provided Customer informs INTERSHOP immediately in writing of such claims. Insofar INTERSHOP will obtain for Customer a licence for further use, or upon its choice will change the material and/or services in order to ensure that no further violation occurs, or, if change of material and/or services is impossible for reasons INTERSHOP is not responsible for, will reverse the relevant business and reimburse to Customer the agreed remuneration. Any relevant drawn profit has to be surrendered by Customer. 8.2.2 Customer’s right according to section 8.2.1 above shall be excluded if Customer uses material which has not been approved by INTERSHOP. The same applies if such material has been changed by somebody which is not INTERSHOP, or if Customer uses it in contradiction to agreed terms of use, unless such actions have not been the cause of the violation described in section 8.2.1 above. 8.3 Indemnification by Customer Customer shall indemnify INTERSHOP and its vicarious agents upon first request against any claims made by any third party against INTERSHOP because of violation of protective rights, and from the time of first request will take on any further dealings with such third party, unless Customer is not responsible for such violation of protective rights. INTERSHOP shall assist and support Customer to the extent necessary. Any expenses associated with it shall be reimbursed to INTERSHOP by Customer. § 9. Liability 9.1 Liability for Wilful Acts and Gross Negligence INTERSHOP shall be liable for any damage caused by wilful acts or gross negligence on part of INTERSHOP, its statutory representatives, or vicarious agents. 9.2 Liability for Major Contractual Obligations, Foreseeable Damage Furthermore, INTERSHOP shall be liable for ordinary negligence when violating material contractual obligations. Material contractual obligations are obligations (i) the fulfilment of which enables proper implementation of this Contract in the first place, (ii) violation of which jeopardizes execution and implementation of this Contract, and (iii) in whose compliance Customer may trust as a rule (so-called material contractual obligations). In the event of violation of material contractual obligations due to ordinary negligence, INTERSHOP shall only be liable for damage which is typically foreseeable. The Parties agree that any damage in excess of the remuneration sum paid by Customer to INTERSHOP for a respective service within the most recent 12 months shall be considered as not typically foreseeable at the time of closing of a Contract, neither in connection with rendering of Cloud or CaaS Services, nor taking into account specific circumstances of a precise commissioning. INTERSHOP shall not be liable for simple negligence relating to other obligations outside the ones described in the preceding sentences. 9.3 Unlimited Liability In Case of Injuries to Life and Limb; Quality Warranty; Malice; Product Liability The above limitations of liability shall not apply in case of injuries to life and limb, or defects after granting a guaranty for the quality of a product, and in case of maliciously withheld defects. Any liability basing on the German Product Liability Act shall remain unaffected. 9.4 Exclusion of Liability for Initial Errors Regardless of Negligence or Fault INTERSHOP’s liability regardless of negligence or fault relating to errors already existing at the time of closing pursuant to § 536a (1) of the German Civil Code shall be expressly excluded, unless one of the requirements of section 9.1 through 9.3 above is met. 9.5 Liability for Loss of Data Liability for loss of data shall be restricted to typical data recovery damage which would have incurred if regular and appropriate security copies and back-ups had been made, unless one of the requirements of section 9.1 through 9.3 above is met. Therefore, Customer shall be obligated to regularly secure data and programmes in application-relevant appropriate intervals. 9.6 Scope of Exclusion of Liability and Restriction of Liability Respectively To the extent INTERSHOP’s liability has been excluded or restricted, this shall also apply to any personal liability of employees, statutory representatives and vicarious agents. § 10. Customer’s Duty to Collaborate 10.1 Assistance Customer shall assist and support INTERSHOP using its best endeavours, and in particular Customer shall provide any required collaborative actions and supportive services in a timely and complete manner. Any consequences resulting from a violation of this provision shall be on account of Customer. Details of such obligations to collaborate on part of Customer shall be set forth in a Contract, if applicable. Any further rights of INTERSHOP shall remain unaffected. INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS Terms), valid as of: April 2018 Page 5 of 6 10.2 Other Responsibilities of Customer Customer agrees to refrain from misusing Cloud or CaaS Services; in particular he shall not distribute or have distributed any racist, sexist, criminal or otherwise discriminating contents. Customer further agrees to comply with any applicable laws, statutory and authority bans and to refrain from violating public morals or public order. Provisions on indemnification in accordance with item 8.3 above shall apply accordingly. Customer agrees to comply with any applicable relevant statutory provisions. 10.3 Opportunity to Restrict Cloud or CaaS Services in Case of Violations of Item 10.2 In case of a violation of section 10.2 above or if such violation is claimed by any third party respectively, INTERSHOP shall be entitled (a) to restrict Customer’s access to Cloud or CaaS Services, and/or (b) request Customer to remove the contents in question, or to have them removed. Further rights of INTERSHOP shall remain unaffected. 10.4 Obligation to Inform 10.4.1 INTERSHOP shall notify Customer in advance of any anticipated measures according to section 10.3 above, and grant Customer an appropriate time-limit to remedy such violations before INTERSHOP performs any of the measures described in section 10.3. This shall not apply if such measure does not allow any delay. 10.4.2 Customer shall immediately notify INTERSHOP if circumstances occur in connection with rendering of Cloud or CaaS Services which might result in claims against Customer or INTERSHOP. Upon INTERSHOP’s request, Customer shall immediately provide any information associated with such circumstances. 10.5 Customer Components Customer shall make available any components described in the Contract, and in particular in service specifications, and shall ensure availability of relevant rights of use and maintenance agreements. This shall in particular include the INTERSHOP standard software and any third party software. Customer shall be responsible for any contents of internet presence. Customer shall represent toward INTERSHOP that he has obtained any relevant rights and will not violate any third party rights respectively. Customer permits INTERSHOP to host, use, process, display and/or transmit its contents in order to be able to render the Cloud or CaaS Services under this Contract. Customer further represents toward INTERSHOP that its contents do not include any viruses, Trojans, worms or other harmful or damaging programme routines. Customer shall be responsible for admissibility of contractually agreed data collection, data processing and data use by INTERSHOP and its sub-contractors. Customer represents toward INTERSHOP that he is authorized to dispose of any data collected in order to enable INTERSHOP to perform its contractually agreed data protection law-related obligations. 10.6 Capacity Planning Capacity planning (storage space) shall be made by Customer and shall fall within his scope of responsibility unless something to the contrary has been agreed in this Contract, in particular in the service specification. Selection of components and variable parameters (e.g. volumes, storage demand) bases on information given by Customer. Any excesses shall be invoiced basing on the relevant applicable INTERSHOP price list. 10.7 Certificates and Domains etc. Customer shall be solely responsible for selection, procurement, administration and use of public and private keys of digital certificates and domains etc. which are to be used in connection with Cloud or CaaS Services. § 11. Other Rights and Obligations 11.1 Granting of Licences The Parties grant each other only those licences and rights which have been expressly specified and agreed. No rights in excess of those shall be granted. 11.2 Settlement of Disputes Any possible disputes or complaints shall be settled amicably, if possible. In particular, each Party shall enable the other Party to fulfil its obligations within a reasonable time-limit before it initiates legal steps because of non-fulfilment of contractual obligations. 11.3 Non-Responsibility A Party shall not be responsible for non-fulfilment of obligations which are outside their reasonable control. 11.4 No Transfer of Rights As far as no deviating provisions have been expressly agreed, Customer shall not be entitled to market Cloud or CaaS Services, or parts of it, under this Contract, or to make them available to any third party. For clarification purposes: use of Cloud or CaaS Services for processing of internal business transactions of Customer in the context of operation of its own online shops shall expressly not be excluded by this provision. 11.5 Online Presence Liability Customer manages his online presence in his own responsibility. INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS Terms), valid as of: April 2018 Page 6 of 6 11.6 Use of Qualified Staff The Parties shall use employees who are qualified to fulfil the obligations of the relevant Party under this Contract. Besides, the Parties shall be solely responsible for their choice, use and supervision and remuneration of any employees used by them. 11.7 Reference, Naming for Advertising Purposes Customer shall agree that INTERSHOP may use the service relationship with Customer as a reference, and in particular that INTERSHOP indicates in its advertising material to this service relationship with Customer. § 12. Change of Contract 12.1 Services INTERSHOP in its reasonable discretion may change and amend fees and terms and conditions for Cloud or CaaS Services by written notification with 90 days’ notice and effective for the future. Increase of remuneration shall be based on general increase of expenses for INTERSHOP, and shall be restricted to a maximum of 10% p.a. relating to the same quantity of accounting. Any changes of terms and conditions of Cloud or CaaS Services shall on principle refer to new commissions, extensions or renewals, unless a change is required for legal purposes at an earlier stage. In case of a unilateral change of Contract according to the above provisions, Customer shall be entitled to terminate the Contract with 30 days‘ notice of effectiveness of such change. However, this shall only apply if and to the extent such change of terms and conditions of Cloud or CaaS Services is unacceptable for Customer. Termination requires written form. 12.2 Other Changes of Contract Besides, any changes of this Contract require written agreement. § 13 Contact Any written notifications under this Contract shall be addressed to: Intershop Communications AG, Intershop Tower, 07740 Jena / Germany. § 14. General 14.1 Protective Clause Any deliveries and performances by INTERSHOP shall be exclusively subject to INTERSHOP’s standard terms and conditions of business. We object to Customer’s standard terms and conditions of business. 14.2 Applicable Law; Place of Jurisdiction Laws of the Federal Republic of Germany shall be applicable with exclusion of the UN Contract on International Sale of Goods (CISG). Exclusive place of jurisdiction relating to any disputes resulting from this business relationship towards businessmen and public law legal entities, or public law special funds shall be Jena, unless another place of jurisdiction is stipulated by law. 14.3 Severability Should individual provisions be or become, partly or wholly, invalid, or if this Contract contains a legal gap, the validity of the Contract in its entirety and the effectiveness of the remaining provisions shall remain unaffected. In such case, the contractual Parties agree to negotiate a provision which comes as close as possible to the mutual interests of the Parties as vested in this Contract. 14.4 Written Form Requirement Any agreement which includes a change of, amendment to or specification of the terms and conditions of this Contract as well as any representations as regards properties and other representations and any other special agreements between the contractual Parties shall be made in writing. Any manifestation of intent by E-mail or text message shall not be sufficient. This written form requirement shall also apply to a cancellation of this written form requirement clause. 14.5 Completeness Upon closing of this Contract all previous oral and written agreements relating to the subject matter of this Contract shall become invalid. 14.6 Changes of Standard Terms and Conditions INTERSHOP shall be entitled to amend these Cloud and CaaS Terms at any time provided no material provisions of the Contract are affected by such amendment, and such change is required in order to adapt to technical and/or legal developments which were not foreseeable at the time of closing of Contract, and the non-consideration of which would considerably impair the balance of this Contract. INTERSHOP will notify Customer in writing on time about any change of these Terms applicable to him. Any amendments shall be considered accepted by Customer if he does not object to them in writing within one month of relevant notification, or if he does not terminate the Contract. In case of objections of Customer, INTERSHOP shall be entitled to terminate the existing contractual relationship. In its notification, INTERSHOP will specifically indicate to such time-limit and its consequences.