License conditions of Sellmore GmbH (Status 02/2024)

1. Object of the contract

Sellmore GmbH (hereinafter referred to as “Sellmore”) grants the licensee (hereinafter referred to as “user”) the non-exclusive, non-transferable right, limited to the term of the contract, to use the licensed software and documentation in accordance with the following license conditions. No further rights are granted. The subject of the contract is the software in the version generally published by Sellmore at the time of the conclusion of the contract. Program extensions, adaptations or modifications are not included in this granting of rights. The specific scope of services of the licensed software results from the service description or the offer. The user has no claim to the inclusion of additional functionalities or program extensions of the software. Sellmore reserves the right to make changes to existing functionalities in the further developed version. In case of a discontinuation of essential core functionalities of the software, the user is entitled to extraordinary termination of this contract of use, unless Sellmore enables the user to use a version with the discontinued functionalities.

The aforementioned rights of use are granted to the user under the suspensive conditions that 
he (a) pays the due license fees in full and on time and (b) registers with Sellmore as an end 
customer before using the software for the first time. In addition, Sellmore offers further 
services as an additional fee-based service, such as hotline support.

2. Usage rights of the user

2.1 The use of the software is only permitted for your own purposes. The transfer of the software to third parties, including rent, the granting of sublicenses and the provision of the software as a service for third parties are not permitted. The user is only entitled to have the software operated by a third party (service provider) with Sellmore's prior written consent. The user is not authorized to translate, edit, change, decompile, reverse engineer or disassemble the software.

2.2 The user must secure the access data and passwords provided to him against unauthorized access by third parties and treat them confidentially. The user shall be liable for the misuse of his access data in the event of non-compliance with the above obligations.

2.3 The user is prohibited from altering copyright notices, trademarks and/or notices contained in the software.

3. Services

3.1 Contractually agreed software maintenance includes the following services:

3.1.1 As part of the software maintenance, the operational capability of the solution is supported and product-specific updates, releases and patches are provided.
3.1.2 Product-specific updates, releases and patches are provided exclusively by means of downloads or directly via the software itself.
3.1.3 The acceptance of error messages and elimination of errors in the supported software as part of the update service or by providing workarounds or generally released information for error elimination ("service packs");
3.1.4 Adaptation of the current maintenance status of the supported software to changes in mandatory statutory regulations that come into effect during the term of the contract. This does not apply to industry-specific requirements unless they are expressly included in the functional scope of the software.
3.1.5 Sellmore determines the content of updates and service packs at its own discretion.

3.2 Services other than those mentioned in these terms and conditions, such as training, instructions, installations, individual adjustments, checking data backups, checking or installing third-party programs, database queries, reports, quick changes, server configuration, system administration and on-site support, are not covered by this agreement. Sellmore provides such services within the scope of its operational possibilities for a separate fee.

4. Registration of the user as an end customer with Sellmore

The condition for the granting of rights of use to the software is the prior registration of the user as an end customer with Sellmore. This requires the provision and recording of customer master data. For the use of the software in a cloud environment, the creation of a web-based user account is also required.

5. Test and demo version

5.1 Sellmore reserves the right to limit the duration of solutions provided for test or demo purposes so that they are no longer usable after the agreed test period has expired. The user cannot derive any claims from this.

5.2 Test and demo versions may only be used for the agreed test and demonstration purposes for the agreed test duration and number of test users. The test may not take place in an operational environment.

6. Obligations of the user

6.1 The user is responsible for creating the necessary conditions for using the software, in particular the system requirements and infrastructure.

6.2 The user has the following general obligations to cooperate within the scope of any agreed support and maintenance services:

6.2.1 The user names Sellmore a qualified employee who is trained in the use of the supported software as contact person. In particular, the user has to ensure that this contact person is able to implement instructions, program changes or solution steps communicated or provided by Sellmore.
6.2.2 The user has to procure and maintain the technical environment necessary for the use of the supported software, especially upgrades, at his own expense.
6.2.3 The user has to procure and maintain the infrastructure necessary for an adequate handling of the support services by means of remote data transmission (telephone, fax, email, internet).
6.2.4 In case of error messages, the user has to describe in detail the symptoms that have occurred, the program version he is using, the hardware configuration and the system environment and report them via the Sellmore support portal (www.support.sellmore.de) by ticket. The user is obliged to cooperate with Sellmore in troubleshooting and error correction.
6.2.5 The user is responsible for the regular backup of his individual data. Sellmore points out that a data backup is especially recommended before every support or maintenance measure (e.g. before changing, adapting or replacing a program version).
6.2.6 Measures and suggestions for troubleshooting and error correction communicated by Sellmore must be adhered to.

7. Remuneration

7.1 The user is obliged to pay Sellmore the agreed fees.

7.2 Sellmore is entitled to change the agreed fees at its reasonable discretion. Sellmore can adjust the fees contained in the price list with effect for existing contracts to the general price development at the earliest after the end of the first contract year and at most once per calendar year. If the increase in fees is more than 10%, the user can terminate the existing contract within one month after receipt of the notification of change, with effect from the date on which the increase in fees is to come into force.

7.3 Sellmore can send invoices to the user as a PDF file. The transmission can be done at Sellmore's discretion by sending it via email to the email address provided by the customer or by uploading it to a customer area on a Sellmore computer system intended for the user, whereby Sellmore will send a notice about the availability of the invoice via email to the email address provided by the user.

7.4 If the user is in arrears with the payment of the agreed fees, Sellmore is entitled to restrict or prevent the use of the software at its reasonable discretion and technical possibilities. If the user is more than two months in arrears with the agreed fees, Sellmore is also entitled to terminate existing contracts extraordinarily.

8. Liability for defects, third-party property rights

8.1 Sellmore will maintain the scope of services during the contract period in accordance with the provisions of these terms of use.

8.2 Sellmore's liability for initial defects of the software is excluded. This does not apply if Sellmore fraudulently concealed the defect or caused it intentionally or through gross negligence.

8.3 The user has to inform Sellmore about defects in the software immediately. The notification must be made in writing and include a description of the symptoms.

8.4 Sellmore will remedy properly reported defects. Sellmore is entitled to make changes to the software in order to eliminate the defects, as long as the contractual service is not changed more than insignificantly. Defects are not corrected individually but by installing regular updates. Only in the case of serious defects shall a correction be made by means of unscheduled hotfixes.

8.5 The user supports Sellmore in the removal of defects and in particular provides all information and documents necessary for the removal of defects.

8.6 In case of significant defects, the user has the right to reduce the agreed remuneration appropriately, i.e. in proportion of the value of the defect-free service to the value of the defective service (reduction) or to terminate the underlying license agreement if the legal requirements are met. Reduction and termination are excluded in the case of only insignificant defects in the services. The right of termination shall only apply to the object of performance directly affected by the defect (e.g. main or additional module) as well as objects of performance that cannot be used independently without the affected object of performance (e.g. additional module to affected main module). The user is not entitled to rectify defects himself. If it turns out that the notice of defects was unjustified, Sellmore can charge the user for the expenses incurred for troubleshooting and analysis according to its general price list if
(i) the user could have recognized the absence of a defect by applying the necessary care and
(ii) the services provided by Sellmore are not contractually owed.

8.7 Sellmore is liable for ensuring that the contractual use of the software does not violate any third party property rights. The user is obliged to inform Sellmore immediately, if third parties assert claims against him due to or in connection with the use of the software. Furthermore, the user will leave the legal defense to Sellmore at Sellmore's request and expense. The user is obliged to support Sellmore in the legal defense to a reasonable extent. Sellmore is entitled to make necessary changes to the software at its own expense due to the claims of third parties.

8.8 Claims for damages or reimbursement of expenses due to defects are limited according to section 8.6 of these terms.

8.9 Claims arising from liability for defects expire after 12 months.

9. Liability of Sellmore

9.1 Sellmore is liable for damages caused by it, its legal representatives or vicarious agents intentionally or through gross negligence, as well as for damages resulting from injury to life, body or health for which it, its legal representatives or vicarious agents are responsible, as well as under the Product Liability Act.

9.2 Sellmore's liability for damages caused by slight negligence is excluded, unless a material contractual obligation has been breached, the fulfillment of which is essential for the proper performance of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the user may regularly rely. This liability is limited to the foreseeable damage typical for the contract in the case of material damage and financial loss. This also applies to loss of profit and loss of savings.

9.3 For damages resulting from the loss of data caused by Sellmore's slight negligence, Sellmore is only liable to the extent of the effort required to restore the data in case of proper data backup by the user.

9.4 As far as Sellmore is liable according to clause 9.2, the liability is limited to the amount covered by Sellmore's business liability insurance.

9.5 Sellmore is not liable for damages if and to the extent that the user could have prevented or reduced their occurrence by reasonable measures – especially program and data backup.

9.6 The provisions of this selection also apply in favor of Sellmore’s employees and other vicarious agents.

10. Contract term and period of use, termination of the contract

10.1 The contract for the use of the software shall commence on the agreed date and, in the absence of such a date, upon delivery of the license key for the software. The term of the contract shall depend on the license model agreed by the parties.
a) Usage/Rent licenses:
The prices quoted apply per month with initial annual advance payment and a quarterly advance payment after the end of the first year. The contract is initially concluded for a fixed term of 12 months (“initial term”). After this term, the contract can be terminated at the end of each quarter with a notice period of 30 days in writing. The date of receipt of the notice of termination is decisive for compliance with the notice period. Electronic form is excluded. The right to extraordinary termination for good cause remains unaffected. This right exists for Sellmore in particular if insolvency proceedings are filed against the user's assets, the user suspends his payments not only temporarily or the user ceases his business operations in whole or in part. In the case of temporary use, the software can be used for as long as the license agreement exists (software rental). Any additional licenses subsequently acquired by the user will automatically become part of the license agreement.
b) Usage/Purchase licenses:
The following applies to the provision of Sellmore software by purchase (onpremises):
i) Upon full payment, the user shall receive a non-exclusive, non-transferable, non-sublicensable and perpetual right to use the contractual software for his own internal use.
ii) No further rights of use are granted. In particular, any duplication, processing, translation, distribution, reproduction, making available to the public or other use of the software that is not expressly authorized and goes beyond the scope of intended use, as well as marketing or exploitation vis-à-vis third parties, is excluded. Unless explicitly permitted by law, reverse engineering, decompilation, disassembly or other conversion into generally readable forms
is not permitted.
iii) Parallel operation on several independent systems is not permitted.

10.2 The right of each party to extraordinary termination of the contract without notice for good cause remains unaffected. An important reason for Sellmore is, in particular, if the user does not pay due license fees despite a reminder or if the user significantly violates the terms of use of this license agreement.

10.3 Cancellations must be made in writing to be effective.

10.4 The user’s rights of use shall expire at the end of the contract term.

11. Final clauses

11.1 There are no verbal collateral agreements. Amendments to the agreements must be made in writing to be effective. If individual provisions of these license terms are or become invalid, the validity of the remaining provisions will not be affected.

11.2 Sellmore can change these license terms with a notice period of three months. The changes will be communicated to the user in writing or by e-mail. The user has the right to object to the changes within one month after receipt of the notification. If the user does not object to the changes, they are considered accepted and the contract will be continued under the changed conditions as soon as the changes come into effect. Sellmore will specifically point out this consequence to the user when notifying the changes. If the user objects to the changes, Sellmore is entitled to terminate the contract extraordinarily with a notice period of one month from the effective date of the change.

11.3 If the user is a merchant, the place of performance for the services to be provided under this agreement is Sellmore's registered office. The place of jurisdiction for all claims arising from or in connection with this contract is Munich.

11.4 The law of the Federal Republic of Germany applies with the exception of the UN Convention on Contracts for the International Sale of Goods.