Terms of Use

1.1.“Affiliated Company” means any legal entity that is affiliated with another company through holding an equity stake and voting rights of more than 50%.

1.2.“Agreement” means an agreement between ECOM and Customer on SaaS Products as identified in the Order Confirmation.

1.3.“Authorized Reseller” means any commercially acting person or entity who has acquired by contract either from ECOM directly or from another Authorized Reseller the right to sell SaaS Products.

1.4.“Authorized User” means a person at Customer or its Business and Persons to whom Customer grants access authorization to use the SaaS Products.

1.5.“Confidential Information” means all information related to this Agreement and its performance which ECOM or Customer mark as confidential or that are deemed confidential according to the circumstances of their disclosure or their content, including the terms and conditions in this Agreement.

1.6.“Consulting Services” means related professional services, such as implementation, configuration, or training services provided by ECOM as agreed in the Order Confirmation.

1.7.“Customer” means any commercially acting person or entity who has acquired from ECOM or an Authorized Reseller the right to use SaaS Products within its own commercial business under the exclusion of the right to resell SaaS Products to any third party.

1.8.“Customer Data” means any content, materials, data, personal data and information that Customer enters into the production system of a SaaS Product

1.9. “Documentation” means any written and/or electronic (i) commercial or (ii) functional or (iii) technical documents about SaaS Products that is provided or made available to Customer by ECOM prior to the use or during the Subscription Term.

1.10.“ECOM Service Platform” means an online platform on which a Customer has to apply for registration and the registration has to be accepted by ECOM before Customer is able to use the SaaS Product.

1.11."Mobile Devices" means mobile devices including but not limited to smartphones and tablets.

1.12. “Order” means any purchase order or ordering document between a Customer and an Authorized Reseller or, if the Customer is purchasing directly from ECOM, between Customer and ECOM, that specifies the ordered SaaS Product.

1.13."Order Confirmation" means the acceptance of Customer's Order by ECOM or an Authorized Reseller either in written or in electronic form.

1.14.“SaaS Product” means any solutions or services made available by ECOM subject to Customer’s acceptance of the ECOM SaaS STC by access to and use of the ECOM Service Platform hosted by or for ECOM to which Customer has applied for and has been registered by ECOM.

1.15.“SaaS Product Service” means any on demand solution services provided ECOM as agreed in the Order Confirmation.

1.16.“Subscription Term” means the agreed term for the provision of SaaS Products as identified in the Order Confirmation

1.17. “Term” means the term as specified in the Order.

1.18.“Update" means any correction, update, upgrade, patch, or other modification or addition made available by ECOM to a SaaS Product.

2.1 During the Subscription Term, ECOM grants to Customer a non-exclusive, non-transferable and world-wide right to use the SaaS Products as defined in the Order Confirmation including the Documentation solely for running Customer’s internal business operations and in accordance with this Agreement.

2.2 Customer may permit Authorized Users to use the SaaS Products within the scope of the Agreement.

2.3 Except for the rights expressly granted herein, Customer shall not engage in any of the acts mentioned below; (1) to reverse engineer, reverse compile, reverse assemble, or other modify or analyze the the SaaS Products in binary form; (2) to remove, obliterate or modify any copyright, trademark or other proprietary notice or marking of ECOM or third parties attached to or included in the SaaS Products; (3) to use, reproduce, modify, distribute assign, license or sublicense or otherwise dispose of the SaaS Products, except as expressly granted herein.

2.4 Customer shall be permitted to copy the Documentation however only to the extent necessary for Customers internal purposes

2.5 When using the SaaS Products Customer shall not breach any applicable law, in particular Customer will not transmit any content or data that is unlawful or infringes intellectual property rights of third parties

2.6 Customer shall take all necessary and appropriate measures to prevent the Customer’s employees from breaching the provisions set forth in the Article 2 above. 2.5 ECOM reserves the right to temporarily limit or suspend Customer’s access to the SAAS Products in case of Customer’s breaching the provisions set forth in the Article 2 above.

3.1 ECOM provides the SaaS Products and including the related Documentation and as the case may be Consulting Services as agreed in the Order Confirmation in accordance with this Agreement.

3.2 ECOM will implement and maintain appropriate technical and organizational measures to protect the personal data processed by ECOM as part of the SAAS Product as more detailed described in the Data Processing Agreement.

3.5 ECOM, ECOM SE or ECOM Affiliates may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the Cloud Service and Consulting Services, as set forth below (“Analyses”). Analyses will anonymize and aggregate information and will be treated as Cloud Materials. Unless otherwise agreed, personal data contained in Customer Data is only used to provide the Cloud Service and Consulting Services. Analyses may be used for the following purposes: (a) product improvement (in particular, product features and functionality, workflows and user interfaces) and development of new ECOM products and services, (b) improving resource allocation and support, (c) internal demand planning, (e) improving product performance, (f) verification of security and data integrity (g) identification of industry trends and developments, creation of indices and anonymous benchmarking.

4.1 Customer is responsible for the content of the Customer Data and entering it into the Cloud Service. Subject to Section 11, Customer grants to ECOM (including ECOM SE, its Affiliates and subcontractors) a nonexclusive right to process Customer Data for the sole purpose of and only to the extent necessary for ECOM to provide and support the Cloud Service (including without limitation preparing backup copies or performing penetration tests); (ii) to verify Customer’s compliance with the provisions set forth in Section 2.

4.2 Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data protection law.

4.3 Customer shall maintain appropriate security standards for use of the Cloud Service by the Authorized Users. Customer will not conduct or authorize penetration tests of the Cloud Service without advance approval from ECOM. Customer is solely responsible for determining the suitability of the Cloud Service for Customer’s business processes and for complying with all applicable legal provisions regarding Customer Data and its use of the Cloud Service. Free of charge, Customer must points out that Customer’s collaboration is a necessary precondition for ECOM’s correct performance of its obligations. Customer bears all consequences and costs resulting from breach of its duties. Section 8 also applies.

4.4 During the Subscription Term, Customer can access its Customer Data at any time. Customer may ask for an export of its Customer Data in a standard format. Export and retrieval may be subject to technical limitations and prerequisites (e. g. as described in the Documentation), in which case ECOM and Customer will agree on a reasonable method to allow Customer access to Customer Data. Before the Subscription Term expires, Customer may Following the end of the Subscription Term, ECOM will delete or overwrite the Customer Data remaining on servers hosting the Cloud Service unless applicable mandatory law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.

5.1 Customer will pay to ECOM or the respective Authorized Reseller the fees agreed in the Order Confirmation on a monthly basis except otherwise provided in this Agreement. No cash discounts shall be granted. Payments are due within 30 calendar days from the date of the receipt of the related invoice.

5.2 All fees agreed in the Order Confirmation are subject to statutory value-added tax which shall be paid by Customer additionally.

6.1 The Subscription Term is as stated in the Order Confirmation.

6.2 At the end of the Subscription Term, it automatically renews by 12 additional months unless the Agreement is terminated by one of the parties in accordance with the following provisions:

6.2.1 Each party may terminate the agreement by written notice at least three month in advance of the expiration of the then valid Subscription Term any Order Form by written notice at least six months prior

6.2.2 The right to termination for cause of each party remains unaffected.

6.2.3 In any case notice of termination must be given in written form.

6.3 At the end of the Agreement, (i) any Customer’s right to use the SaaS Products and the related Documentation shall end (ii) the access to the ECOM SaaS Products shall be disconnected, (iii) Confidential Information will be returned to the disclosing party or destroyed as

7.1 ECOM warrants, for the Subscription Term, that the ECOM SaaS Products (i) substantially meet the specifications set out in the Documentation and (ii) are substantially free from defects and (iii) that the use of the ECOM SaaS Products by Customer does not infringe any third party right.

7.2 For Consulting Services provided as works (“Werkleistung”), ECOM warrants that the Consulting Service corresponds to the agreed service description by remedying defects in accordance with Section 7.4. If defects have not been remedied at the end of an additional time period of a reasonable length set by Customer in writing, Customer is entitled to reduce the payable remuneration in the Order Form for the Consulting Service concerned by an appropriate amount or to withdraw from the Order Form with respect to the Consulting Service. Section 9 applies for damage compensation due to defects.

7.3 ECOM shall perform its warranty obligations in the SaaS Products by providing Customer with either (i) providing a new SaaS Product that is free of defects or at ECOM’s dicretion, by (ii) remedying the defects. ECOM’s remedy for a defect may also be to show Customer a reasonable turnaround way to avoid the defect. In case the defect is defect in title to use the SaaS Product, ECOM shall at its sole discretion (i) either procure to Customer the right to use the SaaS Product or (ii) replace the SaaS Product or or rework the SaaS Product in way that there is no longer a defect in title provided Customer’s contractual use is not substantially impacted, or (iii) terminate the Agreement and reimburse the Customer’s already paid remuneration to the extent that he was not able to use the SaaS Product rightfully.

7.4 Customer must inform ECOM without delay of every defect in writing without together with a detailed description of the defect.

If a third party claims that Customer´s use of the Cloud Service or Cloud Materials in accordance with the terms and conditions of the Agreement infringes its intellectual property rights, Customer must fully inform ECOM in writing without delay. If Customer ceases to use the contractual Cloud Service or Cloud Materials to mitigate loss or for other just reason, Customer must notify the third party that such cessation does not imply any recognition of the claimed infringement. Customer shall conduct court proceedings with the third party only with ECOM’s agreement or shall authorize ECOM to assume sole conduct of the dispute. This applies mutatis mutandis in cases where a third party makes claims against ECOM that are due to acts by Customer, the Authorized Users, or third-party provider access.

9.1 ECOM’s liability shall be limited according to the regulations below:

9.1.1 ECOM’s liability is limited to the total per contract fee per year that was paid by Customer in the preceding contract year for the SaaS Products.

9.1.2 To the extent permitted by law, ECOM excludes liability for indirect and consequential loss such as loss of profit, unachieved savings, interruptions to business or third-party claims.

9.2 The above limitation of liability shall not apply in the following cases: (i) ECOM’s liability for personal injury or liability under the applicable Product Liability Law, and for any damages caused by ECOM’s intent or gross negligence, (ii) Where a higher liability is required by the applicable law. In this case the limitation amounts to the lowest amount of liability which can lawfully be agreed between the parties.

10.1 Customer retains ownership and all other all rights in and related to the Customer Data on the SaaS Product unless otherwise agreed between Customer and ECOM.

10.2 ECOM retains any rights to the SaaS Products that are not expressly granted to Customer in this Agreement except the right to use provided to Customer in accordance with this Agreement. Customer may only use the SaaS Product and the Documentation to the extent contractually agreed in this Agreement.

11.1 Both parties undertake to keep the other party’s Confidential Information acquired in connection with performance of this Agreement, as confidential. Each party shall use the same degree of care which they use to protect their own Confidential Information however not less than a reasonable standard of care.

11.2 Confidential Information of the other party may only be shared with the other party’s prior written consent. This shall not apply for Affiliated Companies.

11.3 Section 11.1 and 11.2 , above shall not apply to any Confidential Information that: (i) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; (ii) is generally available to the public without a breach of the Agreement by the receiving party or is lawfully received free of restriction from a third party; (iii) at the time of disclosure, was known to the receiving party free of confidentiality restrictions; or (iv) the disclosing party agrees in writing is free of confidentiality restrictions.

11.4 Neither party shall use the name of the other party in publicity activities without the prior written consent of the other.

12.1 Amendments and additions to the Agreement require written form.

12.2 SaaS Products and Documentation are subject to the export control laws of various countries, in particular the laws of the US, the EU and Switzerland. Customer shall not hand over or make available the SaaS Product and or the Documentation to countries or to natural or legal persons for which export bans apply according to the relevant export laws.

12.3 ECOM reserves the right, in accordance with the export control laws of various countries, in particular the laws of the US, the Federal Republic of EU and Switzerland, and as a result of trade sanctions and embargos applicable to ECOM, to restrict, temporarily withdraw, or terminate Customer’s access to the SaaS Product.

12.4 Without ECOM’s prior written consent, Customer may not assign or transfer the Agreement or any of its rights or obligations to a third party.

12.5 Swiss law (under the exclusion of the Swiss conflict of law rules) applies exclusively to all claims in contract, in tort, or otherwise, resulting from this Agreement and the UN sales laws convention is excluded.

12.6 The sole place of performance and of jurisdiction for all differences arising out of or in connection with the Agreement shall be Zuerich-1, Switzerland