between you - the “Customer” - and
represented by its Managing Directors (Carmen Bremen and Rico Neitzel)
- herinafter referred to as the “Contractor”
The customer has installed Magento 1, a piece of software developed by Adobe, on its systems. Magento 1 is offered as both a Community Edition and Enterprise Edition. Magento 2 was released in 2015 and is also available in a Community and Enterprise Edition. The technical support service for both editions of Magenta 1 will be fully discontinued on 1 July 2020. When Adobe discontinues its technical support service for Magento 1 and ceases to release patches as of 1 July 2020, the contractor intends to regularly supply patches. To this end, the customer shall pay a monthly fee to gain access to a portal in which it can download the latest patches. The contractor shall maintain and update the software in accordance with this agreement.
This agreement regulates access to the patches provided by the contractor for the Community Edition of Magento 1. Such access shall only be possible if the customer has the latest stable version of Magento 1 installed and works with it.
The contractor shall only deploy qualified and trustworthy personnel. It shall only use tried and tested procedures and tools which it knows are suitable, which it can handle proficiently and which reflect the current state of the art.
(1) The contractor shall follow up on any information supplied by third parties or any security bugs it finds itself to develop necessary patches to the extent possible. The contractor shall provide the customer with new patches to download once they have been produced and then notify the customer via email. The contractor shall assume no obligation to update the software in line with the current state of the art or to ensure a uniform release status in the system.
(2) The following explicitly does not fall within the scope of this agreement:
(1) The word “products” below shall refer to all patches created by the contractor within the scope of this agreement.
(2) The contractor shall grant the customer a temporally and spatially unrestricted – yet revocable and non-exclusive – right to use the products as intended at the time of their creation. This shall not constitute the sole and unrestricted ownership of the products. The customer shall not be entitled to go beyond the intended use (bestimmungsgemäße Nutzung in terms of Section 69d (1) of the German Act on Copyright and Related Rights (UrhG)) of the products by duplicating or editing them (e.g. by combining the software with other programmes, redesigning it, translating it into other programming languages or converting it for other operating systems), or by transferring the products to other display formats, by altering, continuing and enhancing them in any other way, by distributing them in an altered or unaltered form, by reproducing them publicly in a wired or wireless format, by passing them on to third parties or by issuing sub-licences.
(1) Any faults detected in the platform and/or patches must be reported in writing. Any such faults may only be reported verbally if the customer follows up with a written report within two working days. The report must contain a detailed description of the fault (particularly the circumstances under which it arises, as well as its symptoms and effects).
(2) The customer shall appoint an experienced and qualified employee as the point of contact for the contractor; the employee shall be authorised to make the necessary decisions to execute this agreement.
(3) The patches provided by the contractor on its platform shall initially be installed by the customer in a test environment. The customer shall then test the full functionality of the installed patches in this test environment by deploying personnel with a valid Magento 1 Certified Developer or Certified Developer Plus certificate. The customer shall only install patches on its production system once the test has been successfully completed. The customer shall ensure it is able to access earlier versions at any time, such as by using versioning software and current back-ups.
The customer shall compensate the contractor for the provision of the platform used to download patches at either an annual or monthly lump sum, which shall be calculated based on the attached price list, after the contractor has issued an invoice. The customer must immediately inform the contractor if the lump sum to be paid changes due to a change in turnover.
The contractor hereby declares that the patches it provides are protected by copyright in accordance with Section 2 (1) No. 1 of the German Act on Copyright and Related Rights (UrhG) and Section 69a et seq. UrhG.
(1) The contractor shall assume unlimited liability:
(2) In the event of a slightly negligent breach of an obligation that is essential for the purpose of the contract (essential contractual duty), the contractor’s liability shall be limited to the amount of damage that is foreseeable and typical for the respective transaction. The contractor has taken out insurance for third-party financial loss with an insured sum of 250,000.00 EUR, which is the foreseeable and typical amount of damage. The liability assumed by the contractor shall be limited to this amount. The contractor hereby assures that the necessary insurance has been taken out. The contractor shall assume secondary liability if the damage is not covered by the insured sum. If the customer would like to insure a greater degree of damage, it may pay an additional risk premium and agree on a higher insured sum with the insurance company. The above provisions shall explicitly not apply if the contractor is held liable pursuant to § 8 (1).
(3) The contractor shall not assume any further liability.
(4) The limitation of liability specified above shall also apply to the personal liability of the contractor’s employees, representatives and bodies.
(5) The contractor shall assume no liability for any software provided by third parties.
(1) This agreement shall commence when the services are provided by the contractor. It shall run for an initial fixed period of one year. It shall then be automatically renewed for one year at a time, unless it is terminated by one of the parties with three months’ notice at the end of the fixed term or an extension period.
(2) The above provisions shall have no bearing on each party’s right to extraordinarily terminate this agreement for good reason. They shall have a particularly good reason for doing so, if the other contracting party violates essential contractual obligations and a period set for remedy has expired unsuccessfully or a required warning has failed. A deadline or warning is not required if the other contracting party has definitively refused the service owed or special circumstances exist that justify the immediate termination of this contract after consideration the mutual interests.
(3) Both parties shall also be granted a one-off right to extraordinarily terminate this agreement on 30 June 2020. This one-off right to terminate the agreement must be exercised with two weeks’ notice.
(4) All terminations must be made in writing.
(1) The term “confidential information” below shall refer to all information and documents belonging to the other party that are marked as confidential or should be regarded as confidential in view of the circumstances.
(2) The parties agree to maintain secrecy with regard to such confidential information. This obligation shall continue to apply after the termination of this agreement.
(3) This obligation shall not apply to any confidential information:
(4) The parties shall only grant consultants access to confidential information if they are bound to professional secrecy or if they are firstly made subject to the same obligations as those expressed in the confidentiality provisions of this agreement. Furthermore, the parties shall only disclose confidential information to employees who need such information to execute this agreement and, to the extent permitted by labour law, they shall ensure that such employees are still bound to secrecy after terminating their employment with the respective company.
The contractor shall be entitled to hire a sworn, independent auditor who is bound to secrecy and has never entered into a business relationship with either party, in order to check the accuracy of the information provided by the customer pursuant to § 6 above on the basis of its bookkeeping and to verify the accuracy of its bookkeeping and its alignment with the customer’s general bookkeeping. Any costs incurred for such audits shall be borne by the contractor, unless an audit reveals that information provided by the customer pursuant to § 6 above at the expense of the contractor deviates by over 5% from the information that the auditor gathers from the bookkeeping. If such information deviates by over 5% at the expense of the contractor, the costs shall be borne by the customer.
(1) The customer may only transfer any claims it holds against the contractor on the basis of this agreement to third parties with the contractor’s written consent.
(2) Each contracting party may only offset its claims against the undisputed or legally recognised claims of the other contracting party.
(3) Each party may only exercise a right of retention for undisputed or legally recognised claims.
(4) Any additions and amendments to this agreement must be made in writing. This also applies to the amendment or cancellation of this clause.
(5) The general terms and conditions of each contracting party shall not apply.
(6) This agreement shall be subject to German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980. The parties are aware that IT services may be subject to export and import restrictions. In particular, there may be licensing obligations, or the use of the software or associated technologies abroad may be subject to restrictions. The contractor’s performance of the contract shall be subject to the provison that no obstacles are presented by national and international export and import law or any other statutory provisions.
(7) The place of performance shall be Würzburg. The exclusive place of jurisdiction shall be Würzburg, provided each party is a merchant or a legal entity incorporated under public law.
(8) If individual provisions contained in this agreement prove to be ineffective, this shall have no bearing on the effectiveness of the remaining provisions.