General Terms and Conditions
1. Scope of application and contracting parties
1.1 K&W Media Consulting GmbH (hereinafter referred to as K&W Media), a corporation registered in Germany with its registered office at Willy-Brandt-Straße 51, 20459 Hamburg, offers web-based e-commerce software (hereinafter referred to as "Software") for the creation of an e-commerce store on the website "Corizn" (hereinafter referred to as "Corizn").
1.2 The following General Terms and Conditions (hereinafter: GTC) apply to all contracts of use (hereinafter referred to as "Contracts") concluded between K&W Media and Customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB) or other relevant statutory provisions via the "Corizn" platform.
1.3 Deviating general terms and conditions of the Customer shall not apply to contracts unless K&W Media expressly agrees to their application in writing.
2. Conclusion of contract
2.1 The advertising of products on the Internet or in catalogs by K&W Media constitutes a non-binding and noncommittal invitation to the Customer to submit an offer (order). This applies accordingly to letters from K&W Media or CORIZN designated as "non-binding offers".
2.2 The Customer may place an order in writing, by telephone or in text form.
2.3 K&W Media may accept the offer either verbally or by order confirmation in written or text form or by delivery.
2.4 If K&W Media's order confirmation deviates from the Customer's offer, this shall constitute a new offer and the Customer shall accept the offer on the terms and conditions stated in the order confirmation, at the latest by delivery.
2.5 K&W Media has the right to reject an offer.
3. Services
3.1 K&W Media shall provide the Customer with software as agreed in the individual contract.
3.2 The specific functional scope of the booked software is set out in the individual offer letter.
3.3 The documentation of the software can be supplied in German or English and in printed or printable form, unless otherwise agreed.
3.4 The software enables the exchange of data with third-party systems ("Third-Party System") via interfaces ("Integrations"). K&W Media reserves the right to change the range of Integrations, in particular if the Third Party Provider adapts or discontinues the Integration. Insofar as Integrations are not identified as such by K&W Media, they are Integrations that are provided by third-party providers and for which they alone are responsible. The scope of services and the steps required to set up partner integrations are primarily derived from the description on the third-party provider's website. Integrations may only be used for the intended data exchange with the explicitly intended third-party system.
3.5 Partner integrations are not services provided by K&W Media. The scope of functions, prices, term and other terms of use for the provision of partner integrations, including support, shall be governed by the contractual provisions between the customer and the third-party provider (e.g. availability, prices, term). K&W Media assumes no liability or warranty for the partner integrations. In order to be able to use an integration, the customer must have authorization to use the third-party system to be connected. The customer shall be responsible for the operation of the third-party system, including its availability, in the relationship between the customer and K&W Media.
4. Availability and response time in the event of malfunctions
4.1 K&W Media does not guarantee that the software provided will be error-free and will function without interruption. K&W Media shall use its best endeavors to correct any errors in the underlying software within a reasonable period of time if and to the extent that the underlying software was developed by K&W Media itself and the Customer has previously provided a detailed written description of the errors in question. K&W Media accepts no liability for the rectification of errors that have not been developed by K&W Media itself or are not within the sphere of influence of K&W Media (in particular force majeure, fault of third parties). K&W Media is entitled to install temporary solutions, program workarounds or problem-avoiding restrictions in the software.
4.2 K&W Media is entitled to interrupt the availability of the software for maintenance purposes and due to other technical requirements. As far as possible, maintenance work shall be carried out outside normal business hours from Monday to Friday (taking into account public holidays at the Hamburg, Germany location) between 9:00 am and 6:00 pm. If a maintenance measure will lead to an interruption in the use of the software of more than 30 minutes within normal business hours from Monday to Friday (taking into account public holidays at the Hamburg, Germany location) between 9:00 and 18:00, K&W Media will announce this maintenance work by e-mail. The announcement will be made at least 24 hours in advance. At the customer's request, the announced maintenance work may be postponed if K&W Media is responsible for this for technical and economic reasons.
4.3 Disruptions to system availability must be reported by the customer as soon as they become known. K&W Media shall endeavor to ensure a response time of four hours for the start of troubleshooting in the event of reports of system availability faults that lead to a total failure of the software and that are received within the support hours (Monday to Friday between 9:00 and 18:00, taking into account public holidays at the Hamburg, Germany location). In the case of minor faults that do not lead to a total failure of the software and occur during ongoing operation, K&W Media shall endeavor to respond no later than one working day after receipt of the fault report.
4.4 In the case of fault reports received outside support hours, fault rectification shall begin on the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer side or late reporting of the fault) shall not be counted towards the fault clearance time.
5. Cooperation of the customer
5.1 The following cooperation services are the customer's main performance obligations and are not to be classified solely as secondary obligations or duties.
5.2 The customer acknowledges and agrees that the software is not a marketplace and that any purchase contract concluded via the software is concluded directly between the customer and its end customer. As the store operator, the customer is the registered seller for all items sold via the software. He is responsible for the creation and operation of his Corizn store, materials, goods and services that he wishes to sell via the software and for all aspects of the transactions between him and his customers. This includes, but is not limited to, refunds, returns, fulfillment of sales or customer service, fraudulent transactions, required legal disclosures, regulatory compliance, alleged or actual violations of applicable laws (including, without limitation, consumer protection laws in countries where the Customer offers products or services for sale), or the Customer's violation of these Terms and Conditions. The Customer represents and warrants that its store, its materials and the goods and services it sells through the Services are true, accurate and complete and do not violate any applicable laws, regulations or third party rights. Corizn or K&W Media is not the seller or distributor and bears no responsibility for the Shop or the items sold to end customers via the Software.
5.3 The Customer is solely responsible for the goods or services it sells through the Software (including the description, price, fees, taxes charged by the Customer, defects, required legal disclosures, regulatory compliance, offers or promotional content), including compliance with applicable laws or regulations. The Customer agrees to provide publicly available contact information, a right of withdrawal notice and order processing times in its Corizn store.
5.4 The Customer is obliged to provide a qualified contact person together with a deputy who is authorized to make or immediately bring about all necessary decisions required for the provision of the contractually agreed service. The customer is obliged to inform us immediately of any changes to the contact person (and deputy).
5.5 The Customer shall be solely responsible for the content and data processed with the software. The Customer hereby undertakes to use the software of K&W Media only in accordance with the contract and within the scope of the applicable statutory provisions and not to infringe any third-party rights in its use. The Customer shall inform K&W Media immediately, if possible in writing, of: (i) misuse or suspicion of misuse of the contractually agreed service; (ii) a risk or suspicion of a risk to compliance with data protection or data security that occurs in the course of the provision of the contractually agreed service; (iii) a risk or suspicion of a risk to the service provided by K&W Media, e.g. due to loss of access data or hacker attack.
5.6 The Customer is obliged to ensure the technical requirements itself.
5.6.1 The customer is responsible for ensuring that the internet connection has sufficient bandwidth and latency.
5.6.2 The customer is responsible for taking state-of-the-art IT security measures within its own organization and for its employees. These include, but are not limited to, the installation and regular updating of common antivirus software on the laptops, computers or other mobile devices of the Customer's employees, ensuring the assignment and regular updating of secure passwords in accordance with the BSI IT Grundschutz or other equivalent, recognized security standards for the Corizn Account and for the laptops, computers or other mobile devices of the employees or the use of appropriate mechanisms such as 2-factor authentication, automatic inactivity lock, firewall, etc.
5.6.3 The customer is also obliged to ensure the confidentiality of the identification and authentication data assigned to its users as well as access data for interfaces, which also means, for example, the organizational and, if applicable, technical prohibition of the disclosure of passwords and the prohibition of the use of so-called "shared accounts". The ban on the use of shared accounts refers to the Corizn account.
5.6.4 In addition, the Customer must ensure the security of the Internet connection used, i.e. in particular the use of company-owned instead of public Virtual Private Networks (VPN) and ensuring the use of VPN connections in public networks.
5.7 The customer is responsible for the technical setup and administration of the account. This shall apply irrespective of whether K&W Media supports the Customer in setting up the account in any way whatsoever. This includes in particular: (i) the technical setup of the account, in particular migration of data, creation of the URL, configuration of processes and products; (ii) the technical setup of integrations (e.g. payment and shipping service providers) in the Corizn account, the technical connection of interfaces on the Customer's side including the entry of API keys and the administration of the account, in particular the creation of users and roles and assignment of access to the account.
5.8 The Customer shall be obliged to inform K&W Media immediately in text form of any service disruptions (defects in the services, lack of availability) and to provide comprehensible information on any service disruptions that occur. The customer shall support K&W Media to a reasonable extent in the identification and rectification of errors in the event of service disruptions. K&W Media is entitled to show the customer temporary workarounds and to eliminate the actual cause later by adapting the Corizn software, provided this is reasonable for the customer.
6. Granting of rights
6.1 K&W Media grants the customer a non-exclusive, simple, non-transferable right to use the booked software for the term of the contract. The software is protected by copyright. The duration of the transfer of the software is specified in the contract. The provisions of the respective provider shall apply to the rights of use for third-party systems and partner integrations.
6.2 The customer undertakes to use the software exclusively in accordance with the contract and not to reproduce, duplicate, copy, sell, resell, exploit or make available to third parties any part of the software, the use of the software or access to it. The scope of the intended use as well as the type and scope of the rights of use are set out in the individual contract and these GTC.
6.3 The Customer undertakes not to circumvent, bypass or circumvent any of the technical limitations of the Services (such as by processing orders outside of Corizn's checkout), not to use any tool to enable features or functions that are otherwise disabled in the Services, and not to decompile, disassemble or otherwise reverse engineer the Services.
6.4 Customer understands that its Materials may be transmitted unencrypted and may involve (a) transmissions over various networks; and (b) modifications to conform to technical requirements of connecting networks or devices. "Materials" means the trademarks, copyrighted content, any products or services that the Customer wishes to sell through the Services (including description and price), and any photographs, images, videos, graphics, written content, audio files, code, information or other data that the Customer or its affiliates provide or have provided to K&W Media or its business partners.
6.5 K&W Media shall have the sole discretion to refuse or remove any materials from any part of the Software, including if K&W Media determines, in its sole discretion, that the goods or services offered by the Customer through the Software or the materials uploaded or posted to the Software violate the Terms of Use or these Corizn Terms and Conditions.
7. Prices, terms of payment, scope of delivery
7.1 The amount of the remuneration, its due date and invoicing are set out in the individual contract and in the special provisions for special services in the GTC.
7.2 The prices are ex works and subject to statutory value added tax.
7.3 Unless otherwise agreed, invoices are due for payment immediately and without deduction.
7.4 The scope of delivery is set out in the contract.
7.5 If an upstream supplier of K&W Media raises or lowers a price with effect for K&W Media, K&W Media shall pass this on to the Customer. Translated with
7.6 If the Customer is in default of payment, K&W Media shall be entitled to block the Customer's access to the software immediately if no payment has been made even after the expiry of a deadline set for the Customer of one calendar week after the due date. K&W Media shall inform the customer of this blocking in advance, setting a further deadline of one calendar week. In this case, the customer shall remain obliged to continue to pay the agreed remuneration plus any default interest. Any damage caused to the customer by the blocking for this reason cannot be claimed against K&W Media. Furthermore, K&W Media has no right to block access to the software. Furthermore, in the event of default, the statutory provisions of §§ 286, 288 BGB or other relevant statutory provisions shall apply.
7.7 The Customer is independently responsible for the payment of its subscription fees and all other applicable fees, including but not limited to fees related to the value of sales made through its store, transaction fees, and fees related to the purchase or use of products or services such as domain names, or third-party services, in particular shipping and payment services.
7.8 The Customer is also solely responsible for the determination, collection, withholding, reporting and remittance of applicable taxes, customs duties, fees, surcharges and additional costs arising from or as a result of a sale in its Corizn stores or the use of the Software.
8. Commencement of contract, deadlines, minimum term and termination
8.1 Performance dates and deadlines for the commencement of the services shall only be binding if K&W Media has expressly confirmed them and the Customer has met all requirements for the performance of the service by K&W Media that are within its control in good time.
8.2 In case of doubt, the date of the first provision of services by K&W Media stated in the "Order Confirmation" shall apply to the commencement and calculation of deadlines relating to the term and end of the contract (e.g. minimum contract terms).
8.3 In the event of an unforeseeable, unavoidable impediment to performance for which K&W Media is not responsible and which is beyond K&W Media's control, the dates and deadlines shall be postponed by a reasonable period of time.
8.4 If K&W Media's services are delayed, the customer shall only be entitled to withdraw from the contract if K&W Media is responsible for the delay and a reasonable deadline set by the customer for performance has elapsed without success.
8.5 K&W Media has the right to terminate contracts for the fee-based use of the software with monthly billing with a notice period of two weeks and contracts for the fee-based use of the software with annual billing with a notice period of three months to the end of the respective billing period. The date of receipt of the notice of termination by the contractual partner shall be decisive.
8.6 The right of both contracting parties to terminate for good cause remains unaffected. Good cause shall be deemed to exist in particular if the customer is in arrears with the payment of the usage fee or a significant part of this fee.
8.7 Notice of termination must be given in text form. When the termination takes effect, the Customer's account will be blocked and the Customer's Corizn domain will be taken offline. Unless otherwise stipulated in the General Terms and Conditions, the Customer shall not be entitled to any reimbursement of fees, whether pro rata or otherwise. Any outstanding amounts owed by the Customer to K&W Media for the use of the Software up to the effective date of such termination shall become immediately due and payable in full. If the Customer still owes K&W Media any outstanding fees on the date of termination of the Software, the Customer shall receive a final invoice by e-mail. Once this invoice has been paid in full, the customer will not be charged any further fees.
9. Limitation of liability and exemption from liability
9.1 Legal liability for the provision of services against payment. In the case of the provision of services against payment, K&W Media shall be liable in accordance with the statutory provisions for damages resulting from injury to life, limb or health, as well as for other damages resulting from an intentional or grossly negligent breach of duty and fraudulent intent. In addition, K&W Media shall be liable in accordance with the statutory provisions in the case of contracts for the fee-based use of the software for damages that are covered by liability under mandatory statutory provisions, such as in the case of the assumption of guarantees, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by K&W Media shall only be given in writing and, in case of doubt, shall only be interpreted as such if they are designated as a "guarantee".
9.2 Limitation of liability for the provision of services against payment. In the event of slight negligence, K&W Media shall only be liable for damages caused by K&W Media in the case of the provision of services against payment that are attributable to such material breaches of duty that jeopardize the achievement of the purpose of this contract, or to the breach of duties whose fulfilment is essential for the proper performance of the contract and on whose compliance the customer may rely (so-called cardinal breaches of duty). In these cases, K&W Media's liability shall be limited to the foreseeable damage typical of the contract. Liability for the slightly negligent breach of obligations that are not cardinal obligations (see clause 9.2 sentence 1) shall be excluded, unless K&W Media has mandatory liability by law (see clause 9.1 sentence 2).
9.3 Liability for the provision of services free of charge. If services are provided free of charge (e.g. within the use of the free test system), K&W Media shall only be liable for damages caused by intent, gross negligence or fraudulent intent. This limitation of liability shall not apply to damages resulting from injury to life, body or health, for which K&W Media shall be liable without limitation.
9.4 The Customer expressly acknowledges and agrees that, to the extent permitted by law, K&W Media and its suppliers shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses arising out of or in connection with the use or inability to use the Service or these Terms and Conditions. This applies both to the provision of services against payment and free of charge.
9.5 Claims against third parties. The limitations of liability in Clauses 9.1 to 9.3 shall also apply to claims against executives, employees, other vicarious agents or subcontractors of K&W Media.
9.6 The Customer shall be responsible for any breach of the General Terms and Conditions by its affiliates, agents or subcontractors and shall be liable as if it were its own breach.
9.7 The Customer uses the Services at its own risk. The Software is provided "as is" and "as available" without any express, implied or statutory warranty or guarantee.
9.8 K&W Media does not warrant that the Software will be uninterrupted, timely, secure or error free.
9.9 K&W Media does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable.
9.10 K&W Media is not responsible for any tax obligations or liabilities of the Customer in connection with the use of the Corizn Software.
10. Data protection, confidentiality and intellectual property
10.1 K&W Media shall collect and use the Customer's personal data only in accordance with the applicable statutory provisions. The contracting parties shall conclude an agreement on this to the extent required by the applicable provisions.
10.2 Neither contracting party shall be entitled to disclose confidential information of the other contracting party to third parties without express consent (at least in text form). This applies both to customers with contracts for free and fee-based use. All information, whether in writing or transmitted verbally, which (i) is considered confidential or confidential by nature or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or confidential due to the external circumstances of the transmission. Confidential information includes, but is not limited to, specific business information, technical processes and formulas, software, customer lists, lists of potential customers, names, addresses and other information about customers and potential customers, product designs, product descriptions and specifications, sales, costs (including any relevant processing fees), price lists and other unpublished financial information, business plans and marketing data, and other confidential and proprietary information, regardless of whether it is marked as confidential or proprietary. K&W Media's confidential information includes any information you receive in connection with us and the Software that is not known to the general public, including information about our security program and practices. Both contracting parties undertake to use confidential information only for contractually agreed purposes. Both contracting parties shall take at least the same precautions that they take with regard to their own confidential information. Such precautions must be at least adequate to prevent disclosure to unauthorized third parties. Both contracting parties are furthermore obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties shall inform each other in writing of any misuse of confidential information. Excluded from the above obligation is such information that (i) was already known to the other contractual partner prior to transmission and without an existing confidentiality agreement, (ii) is transmitted by a third party who is not subject to a comparable confidentiality agreement, (iii) is otherwise publicly known, (iv) was developed independently and without using the confidential information, (v) has been approved in writing for publication or (vi) must be transmitted due to a court or official order, provided that the contractual partner affected by the transmission is informed in good time in order to be able to initiate legal protection measures. The obligation of confidentiality shall also apply beyond the term of the contract until twelve months after the effective termination date of the contract.
10.3 K&W Media shall not claim ownership of the materials that the Customer provides to K&W Media; however, K&W Media shall require a license for these materials. The Customer grants K&W Media a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to host, use, distribute, display, modify, perform, reproduce, store, publicly perform, communicate to the public (including by telecommunication), broadcast, reproduce, make available, display and translate and create derivative works from materials provided by the Customer in connection with the Software. K&W Media is entitled to use these rights under this License to operate, provide and promote the Software and to perform its obligations and exercise its rights under the Terms and Conditions. Customer represents, warrants and agrees that it has all necessary rights in the materials to grant this license.
10.4 If the Customer owned the Materials before providing them to K&W Media, they remain the property of the Customer despite being uploaded to its Corizn -Shop, subject to any rights or licenses granted in the Terms and Conditions or elsewhere. The Customer may remove their Corizn Shop at any time by deleting the account. Removal of the Corizn -Shop does not terminate any rights or licenses to the materials that K&W Media needs to exercise any rights or perform any obligations that have arisen during the Term.
10.5 The Customer grants K&W Media a non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and license to use the names, trademarks, service marks and logos associated with its store to operate, provide and promote the Software.
11. Reservation of the right to make changes
11.1 K&W Media has the right to amend these General Terms and Conditions at any time or to add provisions for the use of any newly introduced additional services or functions of the Software. The Customer shall be notified of the amendments and additions to the General Terms and Conditions by e-mail to the e-mail address provided by the Customer at least four weeks before the planned entry into force. The customer shall be deemed to have consented to the amendment of the General Terms and Conditions if the customer does not object to the amendment in text form (e.g. letter, fax, e-mail) within a period of two weeks, beginning on the day following the announcement of the amendment. K&W Media undertakes to point out separately in the notice of change the possibility of objection, the deadline for objection, the text form requirement and the significance or consequences of failure to object.
11.2 K&W Media reserves the right to change the software or to offer deviating functionalities, unless changes and deviations are unreasonable for the Customer. If the provision of a modified version of the software or a change in the functionalities of the software is accompanied by a significant change in the customer's work processes supported by the software and/or restrictions in the usability of previously generated data, K&W Media shall notify the customer of this in text form at least four weeks before such a change comes into effect. If the customer does not object to the change in text form within a period of two weeks from receipt of the notification of change, the change shall become part of the contract. Whenever changes are announced, K&W Media shall draw the Customer's attention to the aforementioned deadline and the legal consequences of its expiry if the Customer fails to object.
11.3 In addition, K&W Media reserves the right to change the software or to offer deviating functionalities (i) insofar as this is necessary to ensure that the services offered by K&W Media comply with the law applicable to these services, in particular if the legal situation changes; (ii) insofar as K&W Media thereby complies with a court or authority decision addressed to K&W Media; (iii) insofar as this is necessary to eliminate security gaps in the software; (iv) because the services or contractual conditions of third-party providers (e.g. in the case of integration) or subcontractors have changed. (iv) because the services or contractual conditions of third-party providers (e.g. in the case of integration) or subcontractors (e.g. in the case of additional functionalities) change significantly, or (v) insofar as this is predominantly advantageous for the customer. In particular, K&W Media reserves the right to restrict or terminate the provision of additional functionalities or integrations if the technical partners of the additional functionalities or the providers of the third-party systems significantly restrict or change their services or terms of service and K&W Media can therefore no longer be reasonably expected to continue providing them, e.g. because the additional expense incurred by K&W Media is disproportionately high. In the case of annual billing, the customer shall in this case receive an appropriate pro rata refund of fees paid in advance, provided that the additional functionality or integration was billed separately.
11.4 K&W Media ist berechtigt, die Preise für die kostenpflichtigen vertraglichen Leistungen zum Ausgleich von Personal- und sonstigen Kostensteigerungen jährlich in angemessener Höhe anzupassen. K&W Media wird diese Preisanpassungen und den Zeitpunkt der Wirksamkeit der Preisanpassung dem Kunden in Textform bekanntgeben. Die Preisanpassungen gelten nicht für die Zeiträume, für die der Kunde bereits Zahlungen geleistet hat. Beträgt die Preisanhebung mehr als 5% des bisherigen Preises, so kann der Kunde dieser Preiserhöhung mit einer Frist von zwei Wochen ab Mitteilung widersprechen. Eine aus einer Änderung des Umfangs an Features bzw. Anzahl der zu verwaltenden Mitarbeiter resultierende Änderungen des Preises gilt nicht als Preisanpassung im Sinne dieser Ziffer 11.4.
11.5 If the Customer objects to a change within the meaning of this Section 11 in due form and time, the contractual relationship shall continue under the previous conditions. In this case, K&W Media reserves the right to terminate the contractual relationship extraordinarily with a notice period of one month.
11.6 Amendments to these General Terms and Conditions must be made in text form. This also applies to the waiver of the text form itself.
12. Final provisions
12.1 If individual provisions of the General Terms and Conditions have not become part of the contract in whole or in part or are invalid, the remainder of the contract shall remain valid. Insofar as the provisions have not become part of the contract or are invalid, the content of the contract shall be governed by the statutory provisions.
12.2 The contractual relationship between the contracting parties shall be governed exclusively by the law of the Federal Republic of Germany, expressly excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from and/or in connection with this contractual relationship between K&W Media and the Customer shall be the registered office of K&W Media, insofar as this is legally permissible.
