Terms of Service of Shore GmbH for Merchants
- Content and formation of the contract
- Services provided by Shore
- Compensation and default in payment
- Duties and obligations of the Merchant
- Customer data protection
- Claims for defects
- Indemnification obligation of the Merchant
- Limitation of Liability
- Contract term and termination
- Final Provisions
1. Content and formation of the contract
1.1. Parties and object of the contract. This Agreement governs the legal relationship between Shore GmbH, Seidlstraße 23, 80335 Munich, Germany, (hereinafter referred to as "Shore") and its customers (hereinafter referred to as "Merchants" or the "Merchant" indistinctively) in relation to the provision of a software technology for the booking and management of appointments as well as for the customer relationship management including additional technical services. Shore provides to its customers (Merchants) with a software technology to be used on the Internet (software as a service). Shore's services are oriented exclusively to the commercial or independent professional activities of the Merchant. Shore does not render its services to the (Merchant's) end-costumers.
1.2. No divergent provisions. Deviating provisions or additional provisions to the ones established hereby are excluded. This applies particularly to the Terms of service of any Merchant, and also in the case that Shore while undertaking an order from the Merchant where he refers to its own Terms of service – even if they are attached – and Shore does not object to them.
1.3. Formation of the contract. The contract comes into effect when the Merchant and Shore sign an order form or after an offer and acceptance statement has being made by e-mail or fax as regards the conclusion of a contract in accordance with these Terms of Service.
1.4. Electronic commerce obligations. Article 312i para. 1 No. 1, 2 and 3 as well as article 312i para. 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch), which establish certain obligations for the contractor in electronic commerce, are hereby waived.
2. Services provided by Shore
2.1. Overview. Shore provides to the Merchant the following services:
a) An Internet presence ("portal site"), through which the customers of the Merchant ("end-costumers") can agree on appointments with the Merchant ("booking function");
b) A software technology to be used on the Internet to manage the respective booking requests and appointments and for the customer relationship management, including the mailing of newsletters (hereinafter referred to as "CRM software" or "CRM");
c) Program code for integrating the booking function in certain websites of the Merchant, e.g. websites based on WordPress or Facebook fan pages ("widgets");
d) Apps for mobile devices, through which the Merchant can use individual functions of the CRM ("Merchant-App");
e) When agreed upon, also accompanying technical services, such as the import of existing data of the Merchant into the CRM or the integration of the booking function in websites of the Merchant.
Further details are indicated on the relevant order form and on the list of service specifications available at http://www.shore.com/preise/ ("service specifications"). The booking function of Shore is not intended for the conclusion of legally binding agreements between the Merchant and end-costumers, but rather for supporting their completing of non-legally binding booking requests and appointments.
2.3. Right to use widgets. Shore grants hereby to the Merchant the gratuitous, simple, non-transferable, non-sublicensable and limited in time to the duration of this contract right to use the widgets to integrate the booking function in websites of the Merchant (e.g. in the company's website, Facebook fan page), and especially to install them on servers of the Merchant or in one of the Internet hosting service providers used by these and to run the widgets from there. For the use of individual widgets complementary license and usage conditions of the relevant content management systems producer or of social networks operators (e.g. Facebook) may apply. In addition, the widgets may contain third party components which are subject to so-called Open Source license terms. These terms will prevail over this Agreement in the event of a conflict.
2.4. Merchant-App. As far as the Merchant wants to use individual functions of the CRM using the Merchant-App, the Shore-Merchant-App must be first downloaded free of cost from the respective App-store (such as Google Play store, Apple App store). In that case, the provisions of the respective App-store operator shall prevail.
2.5. Availability. Shore makes available to the Merchant the portal site as well as the CRM with an availability according to list of service specifications (service levels).
a) Transfer point. Shore delivers its services at the connection point of the datacenter used by Shore to the Internet. The Merchant is responsible for the Internet connection between the datacenter and itself.
b) Achieved availability. When determining the actual occurrence of availability failures due to force majeure will be disregarded (for instance strikes, riots, natural disasters, epidemics). Also not to be taken into account system stoppages by Shore, which the company deemed necessary for safety purposes, provided that Shore had taken adequate precautionary security measures (for example, denial of service attack, severe vulnerability in a used third-party software without available patch).
2.6. Setup. The Merchant shall carry out the initial setup of the CRM and the portal site (individual settings, data entry / import, implementation of plugins) by itself, except it was otherwise agreed in the order form. A change in the CRM system or widgets following the Merchant's wishes is not provided.
2.7. Support. Shore makes available an e-mail support free of cost to give assistance with technical issues related to the use of CRM. The support does not include general counseling, training on marketing, legal advice, or setup work. Technical support as regards the web presence of the Merchant will be provided in the context of the service support, only to the extent the widget is directly affected. The support services of Shore will be provided on weekdays from Monday to Friday from 09:00 to 16:00 hours (CET). Excluded are German federal statutory holidays as well as the 24th and 31st of December of each year. The first response to email enquiries arrives normally within 36 hours. Enquiries received outside of regular support hours are deemed to be received during the next business day.
2.8. Documentation. Unless otherwise agreed, Shore is obliged to the providing of user documentation as online help or PDF user manual for the CRM and an installation manual for widgets. Neither further documentation, training, instruction nor commentary on the source codes of widgets will be provided.
2.9. Sub-contractors. Shore may employ sub-contractors for the service performance at its sole discretion, for instance as for the hosting or for the SMS and e-mails sending.
2.10. Services performance changes. The Merchant is aware that the CRM is a standard software technology, which is delivered as "software as a service" service and thereby a variety of customers access to a centralized system. Moreover, the economies of scale resulting from such a multi-tenancy (multi-tenant) model can be only exploited given it is a single software product which can be further developed. The parties therefore agree:
a) Good cause. Shore can modify the CRM, the portal site and widgets (including the system requirements) for good cause. One such cause exists in particular if the change is necessary because of (i) a need to adapt to a new legislation or jurisprudence, (ii) changing technical framework conditions (new browser versions or technical standards), or (iii) to protect the system security.
b) Further development. Shore can also modify the CRM, the portal site and the widgets in the course of their further development (e.g. shutdown of old features which have been already replaced by new ones to a large extent).
Shore will warn the Merchant timely about major and potentially adverse changes, usually four weeks before they come into effect. The approval of the Merchant to such a change shall be deemed granted if the Merchant does not object the change in writing or by e-mail before the date the change is expected to come into effect. Shore will refer again to this legal consequence while announcing the change. Should this change seriously disturb the contractual balance between the parties at the expense of the Merchant, then the change does not take place.
3. Compensation and default in payment
3.1. Fees. The Merchant owes Shore the compensation in the order form for the providing of the portal site, the CRM and the widgets during the contract term. The compensation consists of the chosen tariff and corresponding monthly fee and possibly a usage-based usage fee (e.g. for sent SMS) and possibly a one-time setup fee.
3.2. Due date. The monthly fee is due fully and in advance; the usage fee is due at the end of a contractual month after appropriate billing. The setup fee is due upon conclusion of the contract.
3.3. Invoicing. Shore invoices the fees at the contract's start date and subsequently on the same day of the next calendar month to be billed (e.g. if the contract was concluded on February 12th then the first invoice will be issued on that day, and then the second invoice on March 12th, the third invoice on April 12th, and so on). The basic fee is invoiced in advance; a possible usage-fee is invoiced after the relevant usage. If an annual payment is agreed, the basic fee will be invoiced at the contract's begin and then each new contractual year in advance. The invoicing is completed by sending an invoice as a PDF file to the e-mail address specified in the order form.
3.4. Payment. The payment of the invoiced amounts shall be paid – unless otherwise agreed – via SEPA Direct Debit. The Merchant agrees to grant a corresponding Shore SEPA direct debit mandate. The collection is carried out after invoicing; in the case of annual payment at the beginning of each contractual year.
3.5. Net prices. All prices are exclusive of the statutory applicable value added tax.
3.6. Default in payment. If the Merchant fails to pay the compensation corresponding to two calendar months or a significant proportion of the compensation due; or if in a given period of more than two calendar months, fails to pay an amount equivalent to two monthly basic fees, then is Shore entitled – after appropriate warning notification – to disable the booking function, the portal site and the access to the CRM temporarily or to terminate the contract extraordinarily. During the closure of the service the Merchant will have no access to the data stored in the CRM and the end-customers will not be able to make any bookings.
4. Duties and obligations of the Merchant
4.1. Lawful use. The Merchant will use the services of Shore in compliance with these contractual provisions only, without infringing any third party rights (for instance copyrights, intellectual property rights) and conforming to all applicable laws and regulations. Throughout its software use the Merchant will particularly comply with the rules on data protection, competition law, copyright law and with any applicable confidentiality obligations. The Merchant shall not to process malicious or unlawful data and shall not abuse of Shore's services in any way whatsoever.
4.2. E-mail sending. The Merchant will send newsletters and other promotional e-mails via the CRM only to those recipients who have given their legal consent, or in those cases – when applicable – where the requirements of Art. 7, para 3, of the German Law against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb) are met. When in doubt, Merchant shall inform itself on the legal permissibility of advertising mails. The "Eco Directives for Permissible Email Marketing" are in a referential sense explicitly pointed out (no liability assumed).
4.4. Backups. The Merchant is obliged to retain copies of the data he has introduced to the system and to regularly make backup copies of the data collected through the CRM. In the case the Merchant violates its obligation to maintain a proper data backup, then Shore's liability for such data loss is limited only to those damages which would have occurred even in the case that the Merchant would have performed a proper regular data backup.
4.5. System requirements and duty to cooperate. Unless otherwise specified, the Merchant has to use an updated desktop browser version of Internet Explorer, Google Chrome or Firefox.
4.6. Tax relevant data. The Merchant shall be responsible to store data in accordance with legal requirements (in particular, the requirements of commercial and tax law).
The Merchant is aware that the service does not meet the requirements of the German "Principles of Data Access and Auditability of Digital Documents" (Grundsätze zum Datenzugriff und zur Prüfbarkeit digitaler Unterlagen).
4.7. End-customer relationship. The Merchant is responsible for structuring the legal relationship between the end-customer and itself and for the corresponding contract conclusion in respect to the provision of the service.
5. Customer data protection
5.1. Customer data. The data (i) entered by the Merchant in the CRM concerning end-customers e.g. e-mail, name, address, other information, (ii) concerning end-customers which is ready to be imported and made available to Shore by the Merchant e.g. data exports from other systems, and (iii) generated in the CRM concerning the end-customers e.g. booking requests, appointments, chat content (collectively "customer data") is responsibility of the Merchant. Shore acts purely as a technical service provider and handles customer data confidentially. However, Shore is entitled to use customer data – also beyond the contract's termination – in aggregated or statistical form for error analysis purposes and for the further development of the of software functions or benchmarking.
5.2. Order data processing. As far as customer data contains personal data, the following applies: Shore processes the customer data as order data processor for the sole purpose of providing the contractual services on behalf and on the instructions of the Merchant. Shore takes appropriate technical and organizational measures to protect customer data. The Merchant will remain – particularly regarding its relation with Shore – as the sole responsible for the compliance with the data protection rights and for the legality of the collection, processing and use of customer data in accordance with statutory provisions, in particular of the German Federal Data Protection Law (Bundesdatenschutzgesetz) and the German Telemedia Law (Telemediengesetz).
6. Claims for defects
6.1. Flawlessness and condition. Shore will make the CRM and portal site available free of material and legal defects and during the contractual term in a proper condition for the intended contractual use. While determining the agreed contractual condition / quality of the services primarily the list of service specifications must be considered. The obligation to maintain the software does not include the adaptation of the software neither to changing operating conditions nor to technical and operational developments such as a change of the information technology environment, in particular a change of the hardware or operating systems (e.g. new mobile devices or operating systems), adaptation to the functionality of competing products or production of compatibility with new data formats.
6.2. Remedial measures. The Merchant will inform immediately to Shore about defects of the CRM or the portal site and explaining the circumstances of the occurrence. Shore will remedy the defect within a reasonable period. Shore is entitled to show temporarily workaround options and to remedy the defect at a later moment by means of a software adaptation, provided that this arrangement is deemed reasonable by the Merchant.
6.3. Initial impossibility. The strict no-fault liability of Shore for initial defects in accordance with Art. 536a para. 1, alternative 1 of the German Civil Code is hereby excluded. The fault-based liability of Shore remains unaffected.
6.4. Statute of limitations. The right to claim for defects expire within 12 months. This does not apply in the event of claims for damages and compensation regarding which Shore is compulsory liable (see Section 8.1, sentence 2).
6.5. Legal regulation. Otherwise, the statutory [German] rules for liability for defects apply.
7. Indemnification obligation of the Merchant
7.1. Duty to indemnify. If third parties initiate claims (including public bodies) against Shore, concerning legal violations, that are based on the assertion that the Merchant has failed to fulfill its contractual obligations, for example, in breach of data protection law or has sent emails infringing competition law or omits to present mandatory information, then the following applies: The Merchant shall keep Shore indemnified from these claims without delay; the Merchant shall provide Shore with adequate support for a legal defense and it shall keep Shore indemnified from all costs connected with such legal defense.
7.2. Prerequisites for the indemnification obligation. A prerequisite for the indemnification obligation under [preceding] clause 7.1. is that Shore informs the Merchant immediately about these claims, emits no acknowledgments and no statements in this direction, and allows the Merchant– if possible – to conduct at its own expense all judicial and extrajudicial negotiations concerning the claims.
8. Limitation of Liability
8.1. Exclusion in certain cases. Shore is liable for damages insofar as these:
a) Were committed intentionally or with gross negligence by Shore, or
b) Were caused by Shore with minor negligence and attributable to a fundamental breach of duty, which would jeopardize the achievement of the purposes of this Agreement, or the breach of obligations which fulfillment embody the proper execution of this contract and on which compliance the Merchant may rely (for instance when customer data is completely lost on top of the impossibility to reconstruct old files).
Any other Shore's liability is excluded regardless of its alleged legal basis, except before a legally compulsory liability, including damage to life, body or health of a person, the undertaking of an express warranty, fraudulent concealment of a defect or under the provisions of the German Product Liability Law (Produkthaftungsgesetz). Guarantees by Shore take place in writing only and in case of doubt to be only interpreted as such if they are referred to as "Guarantees".
8.2. Limitation on the amount. In the case of Clause 8.1, sentence 1 letter b) Shore shall be liable limited to what are typically foreseeable damages arising from this type of contract.
8.3. Employees and agents of Shore. The limitations of liability contained on [preceding] Clauses 8.1 to 8.2 shall apply also to claims against employees and agents of Shore.
9. Contract term and termination
9.1. Term. This agreement begins with the bilateral signing of the order form and has, unless otherwise agreed, an initial duration of 12 months which will be extended subsequently for further periods of 12 months (extension period), unless it is not terminated by Shore or the Merchant within the deadline of one month before the end of the initial or an extended term.
9.2. Form. Cancellations can be made in writing, by fax or email. Terminations made by Merchants should be sent by e-mail to email@example.com
9.3. Extraordinary termination. The right to an extraordinary termination remains unaffected. A good cause which entitles Shore's to an extraordinary termination exists in particular when the Merchant sent promotional emails unlawfully through the CRM.
9.4. Data at end of the contract. As of the end of the contract period the Merchant is unable to access the customer data. It is responsibility of the Merchant to export the customer data before the end of the contract term using the export function of the CRM and to store it for further use.
Shore has no obligation to hand over customer data beyond that point (providing for example a SQL-Dump or in a specific format). Shore will delete the customer data at the end of the contract, provided that Shore is not legally required to store it. If the data elimination is possible only with excessive effort (e.g. in backups), Shore can instead lock such customer data in compliance with data protection norms.
10. Final Provisions
10.1. Contract transfer. Shore is entitled to transfer the contractual relationship with the Merchant to a Shore affiliated company in accordance with Art. 15 et seq of the German Stock Corporation Act (Aktiengesetz). Shore will announce the Merchant timely about the transfer, at least four weeks in advance, explicitly granting it a special right of termination and thereby the possibility to withdraw from the contract before the effective date of the contractual transfer. In the event of a special termination, Shore will refund the Merchant pro rata any compensations paid in advance.
10.2. Statements. Unless otherwise provided, announcements and statements under this Agreement require the written form pursuant to Art. 126b of the German Civil Code (e.g. email). Shore can do this by using the specified Merchant's e-mail address indicated in the order form. The Merchant will notify changes promptly to Shore.
10.3. Written form. Modifications to this contract must be performed in writing pursuant to article 126b of the German Civil Code (e.g. e-mail, letter or fax). This also applies to any waiver of this writeen form requirement.
10.4. Offset. The Merchant can offset claims or invoke a right of retention concerning his contractual counterclaims for the respective affected transaction, only in the case these are legally settled or undisputed by Shore.
10.5. Applicable law. This Agreement is governed by German law, excluding the UN Sales Convention.
10.6. Jurisdiction. If the Merchant is a registered sole trader, a public law legal entity or a special fund under public law, the sole jurisdiction is at Shore's registered office. Shore remains entitled to initiate proceedings at the registered office of the Merchant.
10.7. Severability. Should individual provisions of this contract be or become invalid, then the validity of the remaining provisions remain unaffected. Instead of the invalid provision, shall be applied what the parties would have reasonably agreed according to the originally intended (economic) purpose. The same applies in the case of a contractual loophole.
DISCLAIMER. In the event of discrepancies between the German and English versions of these Terms of Service, the German version shall prevail.