General Terms of Use for the brickfox e-Commerce Cloud (SaaS)

Effective as of May 1, 2023

1 Scope and Subject Matter of the Contract

The following terms and conditions (the “General Contract Terms”) apply to the use and operational support of standard software programs (the “Software”) produced by brickfox GmbH, hereinafter referred to as brickfox, and provided as Software-as-a-Service (SaaS) via the Internet.

The subject matter of the contract includes:

the provision of the Software listed at for use via the Internet, and

the storage of customer data on servers in the data center.

2 Type and Scope of Services

The type and scope of services on both sides are determined by the contractual agreements. The scope of services defined in the contract is considered the agreed quality. The following are relevant for this:

the defined scope of services of the Software listed in the contract,

suitability for the intended use specified in the contract,

the conditions set out in the contract,

the conditions outlined below.

In the event of discrepancies, the contractual agreements apply in the order listed above.

Further conditions, particularly the general terms and conditions of the contracting partner, do not apply, even if brickfox does not expressly object to them. Only the general contract terms of brickfox GmbH apply.

3 Terms of Use

3.1 Customer’s Rights to the Software

brickfox grants the customer a non-exclusive, non-transferable, and non-sublicensable right to use the Software specified in the contract for the duration of the agreement. The provision of the Software is done via the Internet. The point of delivery for the SaaS services is the router exit of the data center used by brickfox to the Internet. The customer agrees to use the Software solely in accordance with the contract and not to distribute it to third parties or otherwise make it accessible to third parties. The customer is not entitled to “reverse engineer,” decompile, disassemble, reproduce, or use any part of the Software to create a separate application.

The customer hereby acknowledges brickfox as the sole licensor of the Software and the associated copyrights. brickfox’s rights as the sole licensor also apply to extensions of the Software provided to the customer by brickfox, unless otherwise specified in writing.

The customer hereby acknowledges brickfox’s trademarks, name, and any patent rights related to the Software and its associated documentation. The customer may not remove, modify, or otherwise alter copyright information or similar ownership notices in the programs and associated documentation.

3.2. Customer’s Rights to the Data

The data collected, processed, and generated by the Software are stored on the servers of the data center. The customer remains the sole owner of the data and can therefore request the release of individual or all data from brickfox at any time, especially after termination of the contract, without any right of retention by brickfox. The release of data is done through electronic transmission over a data network or by handing over data carriers as per separate agreement. The customer is not entitled to receive software suitable for the use of the data. The responsibility for the legality of data collection, processing, and usage, as well as the protection of the rights of data subjects (access, use, correction, blocking, deletion), lies with the customer. Similarly, the customer is responsible for complying with the current data protection regulations when processing personal data, such as order data, customer addresses, etc.

3.3. Violation of Usage Conditions

In the event of a violation of the specified usage conditions, brickfox is entitled to terminate the contract in whole or in part without notice. In such a case, brickfox reserves the right to assert claims for damages resulting from the breach of contract against the customer.

3.4. Contract Duration and Termination

The contractual relationship begins upon the conclusion of the contract. The provision of services starts from the point in time specified in the order confirmation or communicated separately upon acceptance. The contract is, unless otherwise agreed, concluded for a duration of 12 months. If the contract is concluded for a specified period or a minimum contract duration has been agreed with the customer, the contract will be automatically extended by the agreed period, but not exceeding one year, unless terminated by either party with a notice period of 3 months prior to the expiration of the specified period or the minimum contract duration. The minimum duration for providing the SaaS service is 6 months.

brickfox is entitled to terminate the contract for a significant reason, especially in the case of failed direct debits.

4 Maintenance Conditions and Service Level

4.1. Enhancements/Changes in Services

brickfox reserves the right to make enhancements and changes in services (e.g., using newer or different technologies, systems, methods, or standards) as part of technical progress and performance optimization after the conclusion of the contract. In the case of significant changes in services, brickfox will provide timely notice to the customer. If the customer incurs significant disadvantages due to changes in services, the customer has the right to terminate the contract with immediate effect on the date of change. The termination must be initiated by the customer within two weeks after receiving notice of the change in services.

Upon providing new versions of the Software, brickfox grants the customer the rights listed in Section 3 for the respective new version as well.

4.2. System Operation

brickfox ensures that the provided Software is operated in an environment and configuration suitable for the customer’s requirements, and on hardware suitable for the customer’s intended purpose. This includes the number and type of servers, regular backups, scalability, power supply, climate control, firewalling, virus checking, and broadband internet connectivity.

4.3. System Availability

The availability of the data center network at the router’s internet exit is at least 99% on an annual average basis. The client-side internet connection is the responsibility of the customer and is not part of the SaaS service scope. Possible downtime is calculated in full minutes and is based on the total sum of outage times per year. Excluded from this calculation are periods that brickfox designates as maintenance windows for optimization and performance improvement, as well as time lost during troubleshooting due to reasons not caused by brickfox and outages due to force majeure.

4.4. System Availability Disruptions

Disruptions in system availability must be reported by the customer immediately upon becoming aware of them, exclusively through the ticketing system. Disruptions of high importance can only be reported by trained staff. Information regarding training possibilities can be found in our current price list and on our website. Before reporting a disruption, the customer must check their responsibility area. For disruption reports received during support hours, rectification will begin within four hours. For disruption reports received outside of support hours, rectification will commence on the following business day. Delays in rectification due to the customer’s responsibility (e.g., unavailability of a contact person on the customer’s side) will not be taken into account for the rectification time.

4.5. Extended Support and Exceptions for “Early Adaptor” Customers

All customers except “Early Adaptor” customers have access to our ticketing system. “Early Adaptor” customers have access to a special section in our support forum where they can interact with other “Early Adaptor” customers and where our Advisory Experts regularly answer questions. Dedicated contact persons, telephone support, different or extended response times, and availability must be booked separately or are only included in specific tariff plans. Please refer to the special provisions and costs in the currently valid price list.

5 Warranty

It is not possible according to the state of the art to completely eliminate errors in software under all application conditions. However, brickfox guarantees that the Software mentioned under is generally usable. The limitation period for warranty claims is one year.

Errors in the Software and the associated documentation will be rectified by brickfox free of charge within a reasonable period. A prerequisite for this rectification claim is that the error is reproducible. To fulfill the warranty obligation, brickfox may choose to rectify the error or provide a replacement. In particular, brickfox may fulfill the warranty obligation by providing the customer with a new version of the Software. Rectification is also considered fulfilled if brickfox provides an alternative solution to the faulty function that enables the customer to use the Software as intended.

Warranty claims are excluded if the Software is not used in accordance with the contract. Furthermore, warranty claims are excluded if the customer makes changes or extensions to the Software mentioned in the contract unless the customer can prove that the errors are not causally related to the changes or extensions.

If a significant program error is not rectified by brickfox in accordance with the above conditions, the customer can demand a reduction in the monthly system fee. brickfox has the same right if rectifying the error cannot be achieved with reasonable effort. If it becomes apparent during the error rectification process that the problems are due to user errors or improper use by the customer, brickfox may demand reasonable compensation for the incurred effort based on its currently valid support hourly rates.

brickfox does not guarantee the fulfillment of the customer’s individual requirements through the Software mentioned in the contract. This applies in particular to the non-achievement of the intended economic success or the manual maintenance effort. Warranty claims against brickfox are solely available to the immediate customer and cannot be assigned.

6 Limitation of Liability

In any case, the contractual and tortious liability of brickfox, except in cases of intent and gross negligence resulting in personal injury, is limited to 500,000 EUR, for property, financial, and operational damages to 25,000 EUR, and for data loss damages to 5,000 EUR. In the case of delay damages, we are liable for up to 5 (five) % of the contractual monthly fee in cases of slight negligence. Liability for indirect costs, such as lost revenue, profit, or manual maintenance effort, is excluded.

brickfox assumes no liability for disruptions in telecommunications connections, disruptions in Internet routes, force majeure, third-party or customer-related faults. brickfox shall not be liable for damages that arise when the customer discloses passwords or user identifiers to unauthorized parties. We recommend changing existing passwords at least every 3 months.

7 Compensation

The fees agreed upon in the contract are charged for the SaaS services. Depending on the type of fee, these are either collected once or monthly in advance. Payment terms and due dates are defined in the contract, and the specific amount is outlined in the current price list.

8 Payment Terms

Payments are made by direct debit or, in exceptional cases, by bank transfer. In the event of exceeding the payment deadline, services can be restricted after a single prior notice in case of default.

The customer is not entitled to offset claims against brickfox unless they are legally established claims or claims recognized in writing by brickfox.

9 Confidentiality, Data Privacy

The contracting parties undertake to keep confidential any insights gained within the scope of the subject matter of the contract – particularly technical or economic data, as well as other knowledge – and to use them exclusively for the purposes of the contract. This does not apply to information that is publicly accessible or becomes publicly accessible without unauthorized action or omission by the contracting parties, or that must be made accessible due to a court order or a law. In the event of support assistance for the customer’s issues, it may be necessary to access customer records. Access can be conducted through a web meeting with the customer or by database analysis. This access is limited to the duration of the respective support measure. If personal data of the customer must be processed within the scope of the subject matter of the contract, brickfox and the customer will comply with the legal data protection regulations.

The processing of the customer’s personal data is carried out solely on behalf and on the instruction of the customer, in compliance with the legal provisions of Article 28 of the GDPR (Data Processing Agreement). To this end, the parties have entered into a separate agreement for data processing as required.

Final Provisions

Subject to any different agreement, both contracting parties are permitted to designate the other party as a reference contractual partner and to use their logo for this purpose.

Place of performance is Stuttgart, Baden-Württemberg. The place of jurisdiction for both contracting parties is Stuttgart, Baden-Württemberg. Only the law of the Federal Republic of Germany shall apply. The contract, its amendments and changes, as well as changes in form, require written form.

If a provision of the contract is or becomes ineffective, this shall not affect the validity of the contract as a whole. The contracting parties undertake to replace the ineffective provision with one that comes as close as possible to the economic intent. The same applies if a contractual gap should become apparent.