General terms and conditions of business

These are the general terms and conditions of the e-commerce platform TIVENDO, which can be found at https://tivendo.com is available ("TIVENDO"). With TIVENDO, sellers, service providers or other entrepreneurs ("shop operators") can create, customize and manage their own online shop ("TIVENDO online shop"). TIVENDO handles the hosting and technical administration of the respective TIVENDO online shop. TIVENDO also offers the technical option of linking services from selected third parties with the respective TIVENDO online shop and thus using them. Sellers can then sell products, services and work to their own customers via these TIVENDO online shops. The contract language is German. These General Terms and Conditions and other contractual terms and conditions are only available in German.

1. Scope

1.1These Terms and Conditions apply to all contracts concluded between the shop operator and TIVENDO regarding the establishment and use of a TIVENDO online shop.

1.2Any deviating, conflicting, or supplementary general terms and conditions of the shop operator shall only become part of the contract with TIVENDO if and to the extent that TIVENDO has expressly agreed to their validity in writing. These terms and conditions also apply if TIVENDO provides the services without reservation despite being aware of conflicting or deviating terms and conditions.

2. Contractual partner

2.1. These General Terms and Conditions regulate the contractual relationships between TIVENDO and the shop operators.

2.2. Shop operators can only be companies within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons or a partnership with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity.

2.3. Only persons who are of legal age (as defined in Section 2 of the German Civil Code) and have full legal capacity (as defined in Sections 104 et seq. of the German Civil Code) may register as shop operators. If the natural person's place of residence is in a country other than Germany, the applicable legal provisions regarding legal capacity and adulthood apply.

3. Scope of services and availability

3.1. TIVENDO is an online service that enables shop operators to create, customize, and manage their own online shops. TIVENDO handles the hosting and technical administration of TIVENDO online shops. Through these TIVENDO online shops, shop operators can then sell products to their customers and/or offer services or work to their customers. TIVENDO offers a variety of services for this purpose, which may vary depending on the booked plan. Details can be found in the respective service description of the plan or on the overview page of the TIVENDO website. TIVENDO also displays services from selected third parties ("third-party providers") that the shop operator can order from the respective third-party provider (this includes, for example, legal texts, content providers, web designers). In connection with offers from third-party providers, TIVENDO acts solely as an intermediary platform between the shop operator and the third-party provider. TIVENDO is not involved in contracts with third-party providers and assumes no responsibility for them.

3.2. The content and scope of the services are determined by the description of the services on the TIVENDO website that is current at the time of the order. TIVENDO's services include, among others:

3.2.1. Configuration and customization

TIVENDO offers the technical capability to configure the online shop. It also offers a variety of options for customizing the offered design.

TIVENDO provides various tools and input forms for this purpose – among other things, it allows shop operators to upload images and graphics and design their online shop using a visual editor. All options, as well as any applicable performance requirements (system requirements) and performance limitations, are described on the TIVENDO website.

3.2.2. Operation

TIVENDO offers shop operators various functions, some as tariff-based and some as additional "apps," that are required for operating an online shop. This includes, on the one hand, the shop operator's ability to integrate product and information pages into the respective online shop, and, on the other hand, functions that enable ordering, technical integration of payment methods, order confirmation, and invoicing. Furthermore, shop operators are provided with an administration area. A detailed description of the services can be found on the TIVENDO website.

3.2.3. Connection to third-party services

To operate the online shop, TIVENDO also works with third-party providers who offer their services (e.g., for marketing, payment, or shipping) on TIVENDO. Online shop operators can order the technical capability to use these third-party services from TIVENDO. However, the provision of the third-party service itself is provided by the third-party provider on the basis of a separate contract (independent of TIVENDO).

3.2.4. Hosting

TIVENDO provides complete hosting for all online shop data and provides the online shop under its own web address (subdomain). The storage space for hosting is limited to the content necessary for the direct operation of the respective TIVENDO online shop. A detailed description of the services and information on any storage space restrictions can be found on the TIVENDO website or when booking the respective plan.

3.2.5. Support

TIVENDO provides shop operators with various support services and guides in text or video format. Contact details are listed or available on the TIVENDO website. Any additional support depends on the respective plan. The respective service descriptions can be found on the TIVENDO website.

3.3. TIVENDO offers shop operators the option of operating a maximum of five online shops via TIVENDO. This also applies if the shop operator logs in multiple times, for example, under different usernames.

3.4. TIVENDO guarantees an average annual availability of 98 hours per day. Excluded from this are the following times:

3.4.1. Times in which the services cannot be provided due to technical or other problems that are beyond the control of TIVENDO (force majeure, fault of third parties, causes within the control of the shop operator (e.g. hardware failure), etc.).

3.4.2. Periods of unavailability due to planned and announced maintenance work. TIVENDO strives to schedule these maintenance periods so that the operation of the individual TIVENDO online shops is impacted as little as possible, for example, during periods of low usage. It should be noted that TIVENDO online shops may be hosted in different time zones, so TIVENDO cannot completely rule out such disruptions.

3.5. To the extent that interfaces for integrating third-party services are made available to the shop operator, TIVENDO guarantees the functionality of this interface in accordance with the respective service description. Compatibility with the third-party services beyond this is not guaranteed.

4. Registration and conclusion of contract for further services

4.1. During the registration process on the TIVENDO website, the website title and shop URL are requested. Further relevant information about the shop operator, such as full name and address, must be provided. By providing an email address and selecting a password, the shop operator can complete the registration process. By completing and submitting the new shop registration form, the shop operator requests the conclusion of a contract with TIVENDO. By entering the required information, confirming these Terms and Conditions, the Privacy Policy, and the Data Processing Agreement (ADV).
and by clicking the "Create shop" button, the shop operator makes an offer to conclude a contract for the use of TIVENDO. The shop operator receives a confirmation informing them that their shop has been created. With this confirmation, the contract for the use of TIVENDO is concluded. The use of TIVENDO with all available functionalities is possible free of charge for 30 days, depending on the tariff ("trial tariff"). After the trial tariff has expired and provided that no paid tariff has been booked (point 4.2) and no cancellation has taken place during the term of the trial tariff, the shop will be put into maintenance mode and will no longer be accessible to the end customer from outside until a valid tariff has been booked. However, the shop operator can still edit and export their orders and customer data in the admin area and book a tariff as part of an upgrade (the provisions of 7.7.1 apply).

4.2. After registration, the shop operator can book additional TIVENDO services in the form of a tariff and edit their shop, in particular, storing products and operator data (although only to a limited extent after the trial tariff has expired). To do so, the shop operator selects the respective tariff on TIVENDO by clicking the button. They then receive a summary of their booking, can add/change billing information, and select the payment method. The booking is completed by clicking the "Book bindingly" button. The shop operator thereby submits an offer to conclude a contract for the use of the services of the respective tariff. The shop operator receives a confirmation email about the tariff booking, which concludes the contract with the shop operator for the services included in the respective tariff. The shop operator also receives an invoice for their booking.

4.3. For offers from third-party providers, TIVENDO acts only as an intermediary. Upon selecting the third-party provider's offer, the shop operator is redirected to the third-party provider's website or offer. The conclusion of a contract between the shop operator and the third-party provider is not covered by these Terms and Conditions. Please check the relevant terms and conditions of the third-party provider, if applicable.

5. Duties and obligations of the shop operator

5.1. The data requested by the shop operator during registration and when booking tariffs must be provided completely and correctly and updated regularly.

5.2. The shop operator undertakes to keep any access data confidential from unauthorized third parties. In particular, the user name and password must be stored in such a way that unauthorized third parties cannot access these data, in order to prevent misuse of the access by third parties. The shop operator undertakes to inform TIVENDO immediately as soon as they become aware that unauthorized third parties have knowledge of the password. The shop operator is liable for damages caused to TIVENDO by unauthorized third parties, to the extent that they are responsible for them.

5.3. The shop operator must ensure that he or she can be reached via the email address provided. Correspondence concerning the contract between TIVENDO and the shop operator will generally be conducted via email.

5.4. The shop operator will refrain from any use of the contractual services that impairs the functionality and other services of TIVENDO or that can be considered an attack on third parties (e.g. hacking attempts, use or sending of spyware, mass sending of emails).

5.5. The shop operator is responsible for the legality of their TIVENDO online shop. The shop operator undertakes, in particular, to:

5.5.1. to design and use its TIVENDO online shop(s) in accordance with the relevant legal requirements in the area of intended distribution.

5.5.2. the legal requirements for the integration of third-party services via interfaces provided by TIVENDO must also be observed.

5.5.3. In particular, to respect copyright, trademark, patent, name and trademark rights as well as other industrial property rights or personal rights of third parties and not to upload and/or make publicly available any files or information with content or representations that violate the rights of third parties or to which the shop operator does not have the rights necessary for the implementation of this contract with TIVENDO.

5.5.4. not to make publicly accessible any extremist content (as defined in Sections 130, 130a and 131 of the German Criminal Code) or content that is sexually offensive, pornographic as defined in Section 184 of the German Criminal Code, likely to seriously endanger the moral well-being of children or young people or to impair their well-being, or that damages the reputation of TIVENDO.

5.5.5. to fulfil the applicable obligations regarding provider identification (“Imprint Obligation”) and information obligations regarding data protection (“Data Protection Declaration”).

5.6. Contractual relationships with customers who place orders on the TIVENDO online shop exist solely between the shop operator and the respective customer. The shop operator alone is obligated to its customers.

5.7. The shop operator may only enter data into TIVENDO that is separately stored as backup copies and that is not irretrievable in the event of loss. TIVENDO's liability for data loss is limited to the usual recovery costs that would have been incurred had appropriate backup copies been created. This does not apply if the damage could have been avoided by the shop operator's regular backup of all relevant data, appropriate to the risk.

6. Costs and fees

6.1. TIVENDO's services in the trial plan are free of charge for 30 days. By concluding a contract for booking plans or additional features, the shop operator may be obligated to pay monthly and/or one-time fees.

6.2. Prices for tariffs are shown in the price list https://tivendo.com/preise/ or from the description of the respective tariff on the website. Any discounts for booked tariffs are only valid once for a contract term (see 11.3) and are not carried over to the following contract term.

6.3. Monthly fees for tariffs are paid using the respective payment methods offered. The shop operator selects the payment method when booking the respective service or tariff or by sending a separate email to TIVENDO (the options are described in more detail on the TIVENDO website) and authorizing the payment order. The monthly fees are invoiced in advance for six months from the time the contract is concluded and are paid using the selected payment method.

6.4. In the event of unsuccessful debits and chargebacks (e.g., chargebacks) for which the customer is responsible, TIVENDO reserves the right to charge the shop operator for the costs incurred by TIVENDO as well as for any costs charged by third parties per unsuccessful debit or chargeback. Furthermore, TIVENDO reserves the right to immediately switch the selected payment method (credit card, direct debit) to the payment method by invoice in the event of unsuccessful debits.

6.5. In the event of a cancellation or chargeback by the shop operator, or in the event of a failed debit (e.g., due to insufficient funds or incorrect bank details), TIVENDO is entitled to invoice the shop operator for any fees payable for tariffs for the entire remaining term. For SEPA direct debits, TIVENDO must notify the shop operator of the direct debit at least five calendar days before the direct debit is due (e.g., by issuing an invoice).

6.6. Invoices for completed tariff bookings are issued in PDF format and automatically sent by email to the email address provided by the shop operator. Postal delivery of the invoice is available upon request and for a processing fee of at least €5.00 per invoice.

6.7. Changes to tariffs (upgrades and downgrades) Changes to the booked tariff in the form of so-called upgrades or downgrades are carried out as follows:

6.7.1. Upgrades

(1) An upgrade to a higher tariff level is possible at any time and can be requested via email via backoffice@tivendo.com The upgrade will result in a change in the tariff level, and the resulting enhanced functionality can be used after the changeover.

(2) Upon implementation of the upgrade, the contract will begin again for the term described in Section 11.3. The provisions regarding contract terms and notice periods listed in Section 11 apply.

(3) The costs and fees for booking the tariff are calculated monthly in advance as described in Section 6.3. Fees already paid for the current month for the original tariff will be refunded pro rata.

(4) With regard to the payment methods that are part of the respective tariff, the change will take place within the billing period so that the better conditions can be used immediately.

6.7.2. Downgrades

(1) A downgrade to a lower tariff level and thus a change to a cheaper tariff can only be carried out at the end of the current contract period.

(2) A so-called downgrade can be requested by sending an e-mail to backoffice@tivendo.com or using the appropriate form at https://tivendo.com/anfrage-support/ possible at any time. A change will take place at the end of the current contract term.

7. Rights of use and indemnification

7.1. TIVENDO grants the shop operator the non-exclusive (simple), non-transferable, non-sublicensable right to use the provided software, programs or scripts, content, texts, images, animations, film, and audio materials ("TIVENDO Services") within the scope of the contract during the respective contract term. The physical transfer of the TIVENDO Services outside of TIVENDO's TIVENDO infrastructure does not occur. The subject of this right of use is internet-based access to the TIVENDO Services offered by TIVENDO. This right of use also applies to new versions, updates, and upgrades of the TIVENDO Services installed during the contract term.

7.2. The shop operator grants TIVENDO the non-exclusive (simple), non-transferable, non-sublicensable, territorially unlimited right to use the shop operator's IP content, such as images and designs, for advertising purposes during the respective contract term. This grant of rights expressly includes all known and unknown forms of advertising on the internet and in any other media outside the internet, in particular on television and in print media. This grant of rights also includes partial use of the shop operator's IP and use in conjunction with other works.

7.3. The shop operator guarantees that it is the owner of the granted rights and that it is able to effectively grant the rights specified in Section 7.2 to TIVENDO. The shop operator also guarantees that it complies with the requirements of Section 5.5.3 and that the works are free of third-party rights that could conflict with the contractual grant of rights.

7.4. The shop operator shall indemnify TIVENDO upon first request from all third-party claims, in particular claims for copyright and personal rights violations, which may be brought against TIVENDO in connection with the exercise of the contractual rights. The above obligation only applies if the shop operator is responsible for the violation. The shop operator must immediately notify TIVENDO of any infringements of the contractual rights that come to the shop operator's attention. TIVENDO is entitled to take appropriate measures to defend against third-party claims or to pursue its rights. The shop operator must coordinate its own measures with the licensee in advance. The indemnification also includes reimbursement of the costs incurred or incurred by the licensee in connection with legal proceedings/defense.

8. Warranty

8.1. Should the suitability of the services for contractual use be cancelled or significantly reduced, the shop operator will notify TIVENDO of this immediately in text form.

8.2. To the extent that the statutory provisions on liability for defects in rental agreements apply to individual services provided under these General Terms and Conditions, Section 536 a Paragraph 2 of the German Civil Code (BGB) (tenant's right to self-remedy) and Section 536 a Paragraph 1 of the BGB (landlord's liability for damages) are waived to the extent that the standard provides for liability regardless of fault.

9. Liability

9.1. TIVENDO is liable without limitation for intent and gross negligence. TIVENDO is liable without limitation for slight negligence in accordance with the Product Liability Act, as well as for damages resulting from injury to life, body, or health.

9.2. Furthermore, TIVENDO is only liable for slight negligence in the event of a breach of a material contractual obligation, the fulfillment of which makes the proper execution of this contract possible in the first place and on whose compliance the shop operator may regularly rely, and the breach of which, on the other hand, jeopardizes the achievement of the contractual purpose (cardinal obligation). In these cases, liability is limited to the damages foreseeable at the time of conclusion of the contract and typical for the contract. This limitation of liability also applies to the vicarious agents employed by TIVENDO.

9.3. In the case of liability for data loss, Section 5.7 of these Terms and Conditions applies.

10. Limitation period

10.1. The general limitation period for claims by the shop operator arising from this contract (including contractual and non-contractual claims for damages) is one year, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in individual cases. The limitation period begins on the date specified in § 199 Para. 1 BGB.

10.2. Claims by shop operators under clause 9.1, sentence 1, and claims under the Product Liability Act, as well as claims resulting from injury to life, body, or health, are excluded from the provisions of clause 10.1. The statutory provisions apply to such claims.

11. Contract term, termination and blocking

TRIAL TARIFF CONTRACT

11.1. The contract for the trial plan is concluded for an unlimited period of time. After 30 days, the shop will be placed in maintenance mode ("lockdown") and will no longer be accessible to the end customer until a paid plan is purchased. The shop operator will still have the ability to process and manage orders and end customer data.

11.2. The contract may be terminated by TIVENDO in its entirety or with regard to individual services in the trial tariff at any time without observing a period of notice in text form. The contract for the trial tariff may be terminated by the shop operator at any time without observing a period of notice in text form. This can be done by letter, email, or directly via the cancellation portal at https://tivendo.com/anfrage-support/ In the event of termination by the shop operator, this notice must be sent to the address of the Bonn branch of TIVENDO in Tulpenbaumweg 9 in 53177 Bonn or to backoffice@tivendo.com In the event of termination by TIVENDO, the termination will be sent to the email address registered in the shop.

CONTRACT FOR PAID TARIFFS

11.3. The contract for the paid tariffs is agreed for a term of six months and is extended for additional six-month periods unless the respective tariff is terminated six weeks before the end of the respective contract term. Termination can be made by letter, email, or via the customer portal at https://tivendo.com/anfrage-support/ In the case of termination by the shop operator, this must be sent by post to the address of the Bonn branch of TIVENDO in Tulpenbaumweg 9 in 53177 Bonn or by email to backoffice@tivendo.com In the event of termination by TIVENDO, the termination will be sent to the email address registered in the shop.

11.4. The right to extraordinary termination without notice for good cause remains unaffected. Good cause exists if facts exist that, taking into account all the circumstances of the individual case and balancing the interests of the contracting parties, make it unreasonable for the terminating party to continue the contract as a whole or with regard to individual services and/or tariffs. A good cause entitling TIVENDO to extraordinary termination exists, in particular but not exclusively, if one of the following events occurs:

11.4.1. An important reason exists in particular if the shop operator seriously violates the obligation under clauses 5.4 and 5.5.

11.4.2. If insolvency proceedings are opened against the shop operator’s assets.

11.4.3. The shop operator is in default with the payment of a monthly invoice for the fees to be paid under this agreement and fails to make this payment within the set period despite a reminder and a one-time grace period granted by TIVENDO.

11.5. TIVENDO is entitled to delete illegal content or, if necessary, to block the shop operator's access to the affected content or contractual services in the event of a violation of the provisions of Sections 5.4 and 5.5 of these Terms and Conditions until the violation has been remedied. Before deletion and after blocking, TIVENDO will, to the extent possible, give the shop operator the opportunity to comment. The right to terminate the contract for good cause remains unaffected. If the shop operator is responsible for the violation, they are obligated to compensate TIVENDO for any resulting damages.

12. Data protection

12.1. The shop operator is responsible to visitors and customers of its online shop on the TIVENDO platform for compliance with applicable data protection law. In particular, the shop operator is responsible for the legality of data processing in connection with the use of the online shop and for compliance with the information obligations based on the Federal Data Protection Act, the General Data Protection Regulation (Regulation (EU) 2016/679), and national data protection laws.

12.2. As the operator of the TIVENDO platform, TIVENDO GmbH collects and processes personal data on behalf of the shop operator. The shop operator therefore undertakes to accept the order processing agreement upon conclusion of the contract during the registration process.

12.3. Further information on the handling of personal data on the TIVENDO e-commerce platform can be found here Privacy Policy.

13. Changes to the terms and conditions and services

13.1. The General Terms and Conditions may be amended to the extent necessary to adapt to developments that were not foreseeable at the time the contract was concluded and which TIVENDO did not initiate or influence, and whose non-consideration would significantly disrupt the balance of the contractual relationship, and to the extent that this does not affect essential provisions of the contractual relationship. Essential provisions are those concerning the type and scope of the contractually agreed services and the term, including the provisions for termination. Furthermore, the General Terms and Conditions may be amended to the extent necessary to eliminate significant difficulties in implementing the contract due to regulatory gaps that arose after the contract was concluded. This may particularly be the case if case law changes regarding the effectiveness of provisions of these General Terms and Conditions, if one or more provisions of these General Terms and Conditions are declared invalid by case law, or if a change in the law leads to the invalidity of one or more provisions of these General Terms and Conditions.

13.2. TIVENDO is entitled to make changes to the IT systems used to provide TIVENDO, as well as to other TIVENDO services, at any time if and to the extent that this is necessary for a valid reason that was not foreseeable at the time of conclusion of the contract, and the change is reasonable for the shop operator. A valid reason exists if these changes are necessary to adapt to the state of the art or to optimize, in particular to maintain or improve, IT systems and TIVENDO services, or if newly issued or amended legal or other sovereign requirements require a change in service.

13.3. TIVENDO is also entitled to make changes to any free services provided at any time. This includes the right of TIVENDO to change the content of these services and/or to expand or restrict their scope.

13.4. TIVENDO may adjust the price list (as defined in Section 6.2.) at its reasonable discretion in accordance with Section 315 of the German Civil Code (BGB) to reflect changes in the total costs that are decisive for the price calculation. The total costs consist in particular of costs for technology and operation of TIVENDO services (e.g., operation of data centers, hardware, software licenses), costs for customer support (e.g., billing and IT systems), personnel and service costs, energy, and overhead costs (e.g., for administration, marketing, rent). A price increase may be considered, and a price reduction may be made, if the total costs increase or decrease. Increases in one type of cost, e.g., technology costs, may only be made to the extent necessary for a price increase.
in which no offsetting effect is achieved by any cost reductions in other areas, such as customer service. In the event of cost reductions, TIVENDO must reduce prices unless these cost reductions are fully or partially offset by increases in another type of cost. In exercising its reasonable discretion, TIVENDO will select the respective times of price changes in such a way that cost reductions are not reflected in standards that are less favorable to the shop operator than cost increases, i.e., cost reductions have at least the same impact on prices as cost increases.

13.5. The shop operator agrees to be informed of changes in accordance with sections 13.1 to 13.4 by email to the email address most recently provided by the shop operator. The shop operator will be notified of the planned changes in text form at least six weeks before the changes are scheduled to take effect. In the case of changes that are not exclusively to the shop operator's advantage, the shop operator has the right to terminate the contract without observing a notice period in text form (e.g., by letter or email) as of the date the changes take effect. The customer will be specifically informed of this in the notification of the changes. The amended General Terms and Conditions shall be deemed accepted if the shop operator does not terminate the contract in writing or by email within this period after receipt.

13.6. TIVENDO undertakes to specifically point out the possibility of objection, the deadline, the presumption of approval and the possibility of termination in the notification of the changes.

13.7. Irrespective of the provisions of Sections 13.4 and 13.5, TIVENDO is entitled in the event of an increase in the statutory value added tax and obligated in the event of a reduction to adjust the prices accordingly at the time of the respective change, without the shop operator having a right of termination as a result.

13.8. Furthermore, changes to the General Terms and Conditions, in particular ancillary agreements, must be made in writing.

14. Final provisions

14.1. The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.

14.2. If the shop operator is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship between the shop operator and TIVENDO is Bonn. This applies accordingly to entrepreneurs.

14.3. TIVENDO reserves the right to transfer its rights and obligations under this contract, in whole or in part, to a third party. The shop operator will be notified of the planned changes in text form at least six weeks before the changes are scheduled to take effect. The shop operator has the right to terminate the contract without notice in text form (e.g., by letter or email) at the time the changes take effect. The shop operator will be specifically informed of this in the notification of the changes. The transfer of rights and obligations is deemed approved if the shop operator does not terminate within this period.

14.4. Should any provision of this agreement be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. The parties shall endeavor to replace the invalid or unenforceable provision with a valid and enforceable provision that economically approximates the invalid or unenforceable provision as closely as possible. The same applies in the event of a gap in the agreement.

As of: 01.09.2020