Thank you for using the RichCommerce Services (as defined below), a cloud-based e-commerce management services platform that allows users to manage parts of their existing independent e-commerce stores through RichCommerce APIs and interfaces. Before reading this RichCommerce Terms of Service (this “Agreement” or these “Terms”), we strongly encourage you to read more about the service located at https://www.RichCommerce.co/ to familiarize yourself with the RichCommerce Services.
To be eligible to register for a RichCommerce account and use RichCommerce’s Services, you must review and accept the terms of this Agreement by clicking on the “I accept” button or other mechanism provided. By providing the data requested in the signup mask and clicking “I accept”, you make us an offer to enter into the Agreement based on these Terms. Before clicking “I accept”, you can review and modify the data entered in the signup mask by clicking on the relevant data field and making your modifications. We will confirm receipt of this offer by e-mail. This e-mail is not acceptance of your offer; we will accept the offer separately either by e-mail or by granting you access to the RichCommerce Services.
PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE TO THESE TERMS AND CONDITIONS WITH REACT TECHNOLOGIES GMBH (OPERATOR OF “RICHCOMMERCE”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON.
In this Agreement, “you,” “your” and “Customer” will refer to you. If you are registering for a RichCommerce account or using the RichCommerce Services on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to RichCommerce that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization). The exception to this is if that organization has a separate contract with RichCommerce covering one or more accounts and use of the RichCommerce Services, in which case that contract will govern the RichCommerce Services with respect to those accounts only.
1. Certain Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
2. Changes to the RichCommerce Services
You acknowledge that RichCommerce may change, deprecate or republish RichCommerce APIs ans Interfaces for any RichCommerce Services or feature of the RichCommerce Services from time to time, and that it is your responsibility to ensure that calls or requests you makes to the RichCommerce Services are compatible with then-current RichCommerce APIs for the RichCommerce Services. Although RichCommerce endeavours to avoid changes to the RichCommerce APIs or RichCommerce Services that are not backwards compatible, if any such changes become necessary RichCommerce will notify you at least thirty (30) days prior to RichCommerce’s implementation of any such incompatible changes to the RichCommerce Service of which it becomes aware.
3. RichCommerce Services
3.1 Provision of Services.
Subject to the terms and conditions of this Agreement and the RichCommerce Acceptable Use Policy (available at https://www.RichCommerce.co/aup.pdf) (the “AUP”), RichCommerce will make the RichCommerce Services available to you pursuant to this Agreement, and hereby grants you a non-exclusive right to access and use the RichCommerce Services to manage e-commerce stores. If Customer is an agency, such rights may, as agreed by the parties, be restricted to access and use on behalf of only certain Customer clients. RichCommerce will provide the RichCommerce Services with an availability of 95% on annual average.
The rights granted herein are subject to the following restrictions (the “License Restrictions”):
3.3 Account Registration; Other Customer Responsibilities
4.1 Fees. You agree to pay the subscription fees, additional usage fees and other fees set forth in RichCommerce’s standard schedule of fees in effect upon conclusion of the Agreement, or any other order forms for the RichCommerce Services ordered by you and accepted in writing by RichCommerce. Except as otherwise mutually agreed upon in writing or expressly set forth herein, (a) fees are quoted and payable in Euros and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
4.2 Payment. Except where expressly agreed otherwise, payments are due monthly in advance. Subject to certain credit requirements as determined by RichCommerce, RichCommerce may let you pay amounts due under these Terms in arrears. If RichCommerce lets you do that, you will make all of the payments due hereunder within thirty (30) days of the date of the invoice. If you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then RichCommerce may assess and you must pay the statutory interest on overdue payments and/or RichCommerce may suspend your account until you pay the amount you are overdue plus the interest. RichCommerce’s other statutory and contractual rights and remedies remain unaffected.
4.3 Suspension. If your use of the RichCommerce Services exceeds the amounts prepaid by you or if you fail to pay any amounts due by you, RichCommerce may suspend your account without prior notice to you. RichCommerce will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of your account pursuant to this section.
4.4 Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by you. You will not withhold any taxes from any amounts due to RichCommerce, except to the extent required under mandatory local law. In the event Customer is thusly obliged to withhold taxes, Customer will inform RichCommerce accordingly in writing as soon as the obligation to withhold taxes becomes known, and will assist RichCommerce at no charge in obtaining any mitigations, exemptions and/or refunds as may be available under any applicable law, including any double taxation treaties. In particular, Customer will provide RichCommerce, at no charge and in a timely manner, with any and all information, document or confirmation required for RichCommerce to avail itself of any exemptions, mitigations or reductions of any such withholding tax under any applicable law, including any double taxation treaties.
5. Proprietary Rights and Confidentiality
5.1 RichCommerce’s Ownership Rights. As between the parties, RichCommerce exclusively owns all right, title and interest in and to the RichCommerce Services. Except for the express rights granted hereunder, RichCommerce reserves all rights, title and interests in and to the RichCommerce Services and RichCommerce’s Confidential Information.
5.2 RichCommerce Mark. RichCommerce hereby grants you a non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of RichCommerce (each, a “RichCommerce Mark”) for the purpose of promoting or advertising that you use the RichCommerce Services. In using RichCommerce Marks, you may not: (a) display a RichCommerce Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by RichCommerce; (b) use RichCommerce Marks to disparage RichCommerce or its products or services; or (c) display a RichCommerce Mark on a site that violates any law or regulation. Furthermore, RichCommerce may modify any RichCommerce Marks at any time, and upon notice, you will use only the updated RichCommerce Marks. Other than as permitted in this Section, you may not use any RichCommerce Marks without prior written consent. All use of the RichCommerce Marks will be subject to any trademark usage guidelines that RichCommerce may provide from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of RichCommerce.
5.3 Feedback. Customer may from time to time provide RichCommerce suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the RichCommerce Services. RichCommerce will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. RichCommerce will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.4 Customer Content. As between the parties, the Customer Content will be owned by you (or, if Customer is an agency, Customer’s client(s)). You hereby grant to RichCommerce a non-exclusive, worldwide license to copy, distribute and use Customer Content only in connection with providing the RichCommerce Services.
5.5 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party other than advisors bound by a professional secret (such as lawyers and tax advisors), except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5.6 Aggregated Information. Notwithstanding anything to the contrary, RichCommerce shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the RichCommerce Services (all in a way that does not permit identification of any individual) and shall be free (during and after the term hereof) to (a) use such data and other information to develop and improve the RichCommerce Services and other RichCommerce offerings, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify you or any individual.
6. Warranties and Disclaimers
6.1 RichCommerce. To the extent any RichCommerce Services are provided free of charge, RichCommerce makes no warranties whatsoever, in accordance with applicable law. To the extent RichCommerce provides the RichCommerce Services against a fee, RichCommerce warrants that it will, consistent with prevailing industry standards, maintain the RichCommerce Services in a manner which minimizes errors in the RichCommerce Services and perform the RichCommerce Services in a professional and workmanlike manner. The RichCommerce Services shall be deemed defective or erroneous or otherwise non-conforming only in the event and to the extent they (i) materially deviate from the agreed Documentation, which is exhaustive, or (ii) fall short of the annual average availability set forth above.
6.2 Customer. You warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Content in connection with the RichCommerce Services as contemplated herein. Without limiting the foregoing, if Customer is an agency, it warrants that it has been granted the necessary rights from its client(s) to use the RichCommerce Services and Customer Content related to such client(s) on such client(s)’ behalf.
6.3 Remedy. In the event of any breach of RichCommerce’s warranty above, RichCommerce will correct the relevant defect of a non-conforming RichCommerce Service in accordance with the agreed specifications at no additional charge to the Customer. In the event that RichCommerce is unable to correct a non-conforming RichCommerce Service within a reasonable time period to be set by Customer (which must allow for at least three attempts at rectification), Customer may claim a reduction in fees proportionate to the defect (and claim a refund of any pre-paid fees exceeding the accordingly adjusted total) or terminate the concerned RichCommerce Service(s) immediately by written notice, and shall be entitled to receive a refund of any pre-paid Fees for unused RichCommerce Service access remaining during the term of the concerned RichCommerce Service(s). Save for damage claims subject to the limitations of liability Section below, the foregoing remedy is Customer’s sole remedy in the event of a breach of the limited warranty above.
6.4 Customer’s Cooperation. RichCommerce’s obligations for breach of warranty as set forth above in this Section are conditional upon Customer promptly notifying RichCommerce of such breach in writing, and providing RichCommerce with sufficient evidence of such non-conformity to enable RichCommerce to reproduce and/or verify the same.
6.5 BETA SERVICES. FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH RichCommerce WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY RichCommerce FREE OF CHARGE FOR TESTING PURPOSES. ANY USE OF THE BETA SERVICES IN CONJUNCTION WITH ACTUAL DATA AND/OR IN A PRODUCTIVE SETTING, IS AT YOUR SOLE RISK. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. YOU OR RichCommerce MAY TERMINATE YOUR ACCESS TO THE BETA SERVICES AT ANY TIME.
You will defend, indemnify and hold RichCommerce and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the provision of any Customer Content (“Claim”). RichCommerce and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. RichCommerce reserves the right, at your expense, to retain separate counsel for themselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section (to the extent permitted under applicable law, in particular the applicable laws, rules or code of civil procedure). You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against RichCommerce in connection with any Claim. You will also be liable to RichCommerce for any costs and attorneys’ fees RichCommerce incurs to successfully establish or enforce RichCommerce’s right to indemnification under this Section.
8. Limitation of Liability
8.1 Notwithstanding the provisions that follow, to the extent RichCommerce provides the RichCommerce Services free of charge, it is liable only for damages caused intentionally or with gross negligence, in accordance with statutory law.
8.2 RichCommerce’s liability is unlimited for damages caused intentionally or with gross negligence, personal injury and death, for breaches of a guarantee (which must be expressly designated as such in order to be a guarantee in the legal sense) and under the German Product Liability Act.
8.3 Except in the cases of unlimited liability stated above in this Section, RichCommerce’s liability in the event of a breach of a Cardinal Duty with simple negligence is limited to damages that are typical for cloud services agreements and foreseeable upon conclusion of the Agreement (“Typical and Foreseeable Damages”). A “Cardinal Duty” for the purpose of this Agreement is a duty the compliance with which makes the achievement of the purpose of the Agreement possible in the first place and on the compliance with which the other Party may therefore generally rely. Any other liability for simple negligence is excluded.
8.4 The amount of Typical and Foreseeable Damages is limited to the amounts Customer paid to RichCommerce in the twelve (12) months immediately preceding the incident creating the specific liability.
8.5 To the extent RichCommerce is responsible for any loss of data pursuant to the provisions above, RichCommerce’s liability is further limited to the amount that would be necessary to restore the lost data if regular backups had been made in compliance with these Terms of Service.
8.6 RichCommerce’s no-fault strict liability for initial defects under Sec. 536a (1) of the German Civil Code is excluded.
8.7 To the extent that RichCommerce’s affiliates, employees or directors are held liable in connection with the Agreement, the exclusions and limitations of liability in this Section shall apply to such liability.
9. Termination and Suspension
9.1 Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.
9.2 Termination and Suspension. You may terminate your account at any time through the account management tools made available through the Service. RichCommerce may terminate your account at any time with six (6) week’s notice; provided that to the extent you have pre-paid any fees for a specific time period, such termination for convenience will be effective no earlier than at the end of such pre-paid period. RichCommerce furthermore may terminate or suspend your account in the event you commit any material breach of any provision of these Terms and fail to fix that breach within five (5) days after written notice of that breach. RichCommerce may also terminate or suspend your account immediately for cause if: (a) you violate (or give RichCommerce reason to believe you have violated) the AUP; (b) there is reason to believe the traffic created from your use of the RichCommerce Services or your use of the RichCommerce Services is fraudulent or negatively impacting the operating capability of RichCommerce Services; (c) RichCommerce determines, in its sole discretion, that providing the RichCommerce Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the RichCommerce Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. Either Party’s statutory right to terminate this Agreement for good cause remains unaffected. If RichCommerce suspends your account, RichCommerce will notify you accordingly. Note that no refund will be provided in the event of any suspension or termination of your account for your breach.
9.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below. If Customer terminates for RichCommerce’s breach pursuant to the provisions above, RichCommerce shall reimburse any unused pre-paid fees.
10.1 Export Controls. The RichCommerce Services, including any software RichCommerce provides in connection with the RichCommerce Services, may be subject to applicable export control laws and economic sanctions regulations. In receiving this software or the RichCommerce Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and the RichCommerce Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the RichCommerce Services. These laws include restrictions on destinations, users and end use. Without limitation, you may not transfer any such software or other aspect of the RichCommerce Service without any required government authorization to any entity on a government exclusion list (e.g., the U.S. Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government, European Union or other applicable exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of RichCommerce’s software and the RichCommerce Service if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
10.2 Publicity. You agree that RichCommerce may refer to your name and trademarks in RichCommerce’s marketing materials and website; however, RichCommerce will not use your name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without your prior written consent (which may be by email).
10.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. In addition, you agree that RichCommerce may have any of its obligations performed through an affiliate of RichCommerce, provided that RichCommerce will remain responsible for its obligations hereunder and will be liable for such affiliate’s performance as if it were RichCommerce. RichCommerce may assign receivables under this Agreement for purposes of debt collection and financing arrangements. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4 Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. This also applies for any waiver of the written form requirement. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5 Amendment. RichCommerce may amend or modify this Agreement – with the exceptions of the Parties’ main rights and obligations – from time to time to the extent required to comply with changes in applicable statute and/or case law, or for similarly compelling reasons, in which case the new Agreement will supersede prior versions. RichCommerce will notify you via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 days from the sending of such notice, such non-objection may be relied upon by RichCommerce as your consent to such amendment. RichCommerce will inform you about your right to object and the consequences of non-objection in such notice. Subject to the foregoing, no amendment or modification to this Agreement will be effective unless assented to in writing by both parties. This also applies for any waiver of the written form requirement.
10.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, the Parties will replace such provision in good faith by a provision coming as close as possible to the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.8 Governing Law. This Agreement will be governed by the laws of the Federal Republic of Germany, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the courts of Munich, Germany, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
10.9 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to you must be sent to your email or other address as set forth in your account information. Notices to RichCommerce must be sent to the following address: React Technologies GmbH, Freihamer Str. 5a, 82166 Gräfelfing, Germany.
10.10 Entire Agreement. This Agreement comprises the entire agreement between you and RichCommerce with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by RichCommerce, its agents or employees will create a warranty.
10.11 Order of Precedence. In the event of any discrepancy between these Terms of Service and the Acceptable Use Policy (AUP), these Terms of Service take precedence.
10.12 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy (except such incidents concerning only the relevant Party’s personnel), civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.13 Government Terms. RichCommerce provides the RichCommerce Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If you (or any of your customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the RichCommerce Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The RichCommerce Services were developed fully at private expense.
10.14 Interpretation. For purposes hereof, “including” means “including without limitation”. All dates and times set forth in this Agreement or any related document are in relation to Greenwich Mean Time (GMT), unless otherwise specified.