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. In addition, TIVENDO offers the technical option of technically 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 contract 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.

1.2. Any deviating, conflicting or supplementary general terms and conditions of the shop operator will 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 knowing that there are conflicting or deviating conditions from these terms and conditions.

  1. Contractual partner

2.1. These 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 ff 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 legal provisions on legal age and capacity applicable there apply.

  1. Scope of services and availability

3.1. TIVENDO is an online service that enables shop operators to create, customize and manage their own online shop. TIVENDO handles the hosting and technical administration of TIVENDO online shops. Shop operators can then use these TIVENDO online shops to sell products to their customers and/or offer services or work to their customers. TIVENDO offers a variety of services for this, which can vary depending on the tariff booked. Details can be found in the respective service description of the tariff 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 is only involved as an intermediary platform between the shop operator and the third-party provider. TIVENDO is not involved in the contracts with third-party providers and assumes no responsibility for them.

3.2. The content and scope of the service is determined from the description of the services on the TIVENDO website that is current at the time of the order. TIVENDO's services include:

3.2.1. Configuration and individual adaptation

TIVENDO offers the technical possibility to configure the online shop. TIVENDO also offers a variety of options to individualize the design offered.

TIVENDO provides various tools and input masks for this purpose - among other things, the shop operator is given the opportunity to upload images and graphics and to design his online shop with a visual editor. All options as well as any existing performance requirements (system requirements) and performance restrictions 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 the shop operator's ability to incorporate article and information pages into the respective online shop and, on the other hand, functions that enable ordering, technical connection of payment methods, order confirmation and invoicing. Shop operators are also 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. For these services, the online shop operators can order the technical option to use these third-party services from TIVENDO. The provision of the third-party service itself, however, is provided by the third-party provider on the basis of a separate contract (independent of TIVENDO).

3.2.4. Hosting

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

3.2.5. Support

TIVENDO provides the shop operator with various assistance and guides in text or video format. Contact options are provided or can be accessed on the TIVENDO website. Any additional support depends on the tariff booked. The respective service description can be found on the TIVENDO website.

3.3. TIVENDO offers the shop operator the possibility of operating a maximum of five online shops via TIVENDO. This also applies if the shop operator registers multiple times, for example under different user names.

3.4. TIVENDO guarantees an average availability of 98 hours per day per year. The following times are excluded:

3.4.1. Times during 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 errors), etc.).

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

3.5. If interfaces are made available to the shop operator for integrating services from third-party providers, TIVENDO guarantees the functionality of this interface in accordance with the respective service description. Any further compatibility with the services of third-party providers is not guaranteed.

  1. Registration and conclusion of contract for further services

4.1. During the registration process on the TIVENDO website, the title of the website and the shop URL are requested. Further relevant data of the shop operator, such as full name and address, must then be provided. The shop operator can complete the registration process by providing the email address and assigning a password. The shop operator applies for the conclusion of a contract with TIVENDO by completing and submitting the new shop registration form. By entering the required information, confirming these terms and conditions, the data protection information, the ADV (contract for data processing)
and pressing 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 with the information that his 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 (point 4.2) was booked and no cancellation was made 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 is booked. However, the shop operator can still edit and export his 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 the additional services of TIVENDO in the form of a tariff and edit his shop, in particular store products and operator data (but only to a limited extent after the trial tariff has expired). To do this, the shop operator selects the respective tariff on TIVENDO by pressing the button. He then receives a summary of his booking, can add/change billing data and choose the payment method. The booking is completed by confirming the "book bindingly" button. The shop operator thereby makes 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 booking of the tariff, with which the contract with the shop operator for the services included in the respective tariff is concluded. The shop operator also receives an invoice for his booking,

4.3. For offers with third-party providers, TIVENDO only acts as an intermediary. When 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.

  1. Duties and obligations of the shop operator

5.1. The data requested by the shop operator during registration and when booking tariffs must be complete and correct and updated regularly.

5.2. The shop operator undertakes to keep any access data secret from unauthorized third parties. In particular, the user name and password must be stored in such a way that unauthorized third parties cannot access this data in order to prevent misuse of the access by third parties. The shop operator undertakes to inform TIVENDO immediately as soon as he becomes aware that unauthorized third parties know the password. The shop operator is liable for damages caused to TIVENDO by unauthorized third parties, insofar as he is responsible for this.

5.3. The shop operator must ensure that he can be reached via the email address he has provided. Correspondence relating to the contract between TIVENDO and the shop operator is generally handled via email.

5.4. The shop operator will refrain from any use of the contractual services that impair 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 spy software, mass sending of e-mails).

5.5. The shop operator is responsible for the legality of his 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 must also be observed for the integration of third-party services via interfaces provided by TIVENDO.

5.5.3. in particular, to observe 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 available 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 damaging the reputation of TIVENDO.

5.5.5. to fulfil the applicable obligations regarding provider identification (“legal notice obligation”) and information obligations regarding data protection (“data protection declaration”).

5.6. Contractual relationships with customers who place orders on the TIVENDO online shop only arise 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 stored separately as backup copies and that is not irretrievable if lost. TIVENDO's liability for data loss is limited to the usual recovery costs that would have occurred if backup copies had been made. This does not apply if the damage could have been avoided by the shop operator backing up all relevant data regularly and in a manner appropriate to the risk.

  1. Costs and fees

6.1. The TIVENDO services in the trial tariff are free of charge for 30 days. By concluding a contract for booking tariffs or additional functionalities, the shop operator can be obliged to pay monthly and/or one-off fees.

6.2. Prices for tariffs are based on 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 into the following contract term.

6.3. Monthly fees for tariffs are paid using the 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 by authorizing the payment order. The monthly fees are invoiced six months in advance from the time the contract is concluded and 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 and for costs charged by third parties per unsuccessful debit or chargeback. In addition, TIVENDO reserves the right to immediately switch the selected payment method (credit card, direct debit) to the payment method invoice in the event of unsuccessful debits.

6.5. In the event of cancellation or chargeback by the shop operator or in the event of a failed debit (e.g. due to insufficient funds in the account or incorrect bank details), TIVENDO is entitled to invoice the shop operator for any fees payable for tariffs for the entire remaining term. In the case of SEPA direct debits, TIVENDO must announce the direct debit at least 5 calendar days before the direct debit is collected (e.g. by issuing an invoice).

6.6. Invoices for tariff bookings are issued in PDF format and are automatically sent by email to the email address provided by the shop operator. Invoices can be sent by post on request and for a processing fee of at least EUR 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. Upgrade

(1) An upgrade to a higher tariff level is possible at any time and can be requested by email via [email protected] The upgrade involves a change in the tariff level and the expanded functionalities can be used after the changeover.

(2) When the upgrade is carried out, the contract begins again for the contract period described in section 11.3. The provisions regarding the contract periods and notice periods set out 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 changeover takes place within the billing period so that the better conditions can be used directly.

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 [email protected] or using the appropriate form at https://tivendo.com/anfrage-support/ possible at any time. A changeover will take place at the end of the current contract period.

  1. Rights of use and exemption

7.1. TIVENDO grants the shop operator the non-exclusive (simple), non-transferable, non-sublicensable right to use the TIVENDO service that is the subject of the contract within the scope of the purpose of the contract for the software, programs or scripts, content, texts, images, animations, film and sound materials ("TIVENDO services") provided during the respective contract term. The TIVENDO services that are the subject of the contract are not physically transferred outside of TIVENDO's TIVENDO infrastructure. The subject of this right of use is internet-based access to the TIVENDO services offered by TIVENDO. The right of use also applies to new versions, updates and upgrades of the TIVENDO services installed during the term of the contract.

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

7.3. The shop operator guarantees that he is the owner of the rights granted and that he is able to effectively grant the rights to TIVENDO as set out in section 7.2. The shop operator also guarantees that he 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 granting of rights.

7.4. The shop operator shall indemnify TIVENDO against all claims by third parties, in particular against claims for copyright and personal rights violations, which may be brought against TIVENDO in connection with the exercise of the contractual rights, upon first request. The above obligation only applies if the shop operator is responsible for the violation of rights. The shop operator must immediately inform TIVENDO of any impairment of the contractual rights that comes to his knowledge. TIVENDO is entitled to take suitable 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 through legal action/defense.

  1. Warranty

8.1. Should the suitability of the services for contractual use be cancelled or significantly reduced, the shop operator will inform 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 (Tenant's right to remedy defects himself) and Section 536 a Paragraph 1 of the German Civil Code (Lors' obligation to pay damages) are waived to the extent that the norm provides for liability regardless of fault.

  1. 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 and for damages resulting from injury to life, body or health of persons.

9.2. Furthermore, TIVENDO is only liable for minor 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 can regularly rely, and the breach of which, on the other hand, endangers the achievement of the purpose of the contract (cardinal obligation). In these cases, liability is limited to the amount of damage that was foreseeable at the time the contract was concluded and was typical for the contract. This limitation of liability also applies to the vicarious agents employed by TIVENDO.

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

  1. Limitation period

10.1. The general limitation period for claims of 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 lead to a shorter limitation period in individual cases. The limitation period begins at the time 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 damages resulting from injury to life, body or health of persons are excluded from the provisions of clause 10.1. The statutory provisions apply to such claims.

  1. Contract term, termination and blocking

TRIAL TARIFF CONTRACT

11.1. The contract for the trial tariff is concluded for an unlimited period of time. After 30 days, the shop is put into maintenance mode (“blocked”) and is no longer accessible to the end customer until a paid tariff is booked. The shop operator still has the option of processing and managing orders and end customer data.

11.2. The contract can 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 writing. The contract for the trial tariff can be terminated by the shop operator at any time without observing a period of notice in writing. This can be done by letter, by email or directly via the termination portal at https://tivendo.com/anfrage-support/ In the event of termination by the shop operator, this must be sent to the address of the Bonn branch of TIVENDO at Tulpenbaumweg 9 in 53177 Bonn or to [email protected] In the event of termination by TIVENDO, the termination will be sent to the email address registered in the shop.

CONTRACT FOR PAID RATES

11.3. The contract for the paid tariffs is agreed for a contract period of six months and is extended for a further six months unless the respective tariff is terminated six weeks before the end of the respective contract period. Termination can be done 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 at Tulpenbaumweg 9 in 53177 Bonn or by email to [email protected] 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 there are facts that mean that the person terminating the contract cannot be expected to continue the contract as a whole or with regard to individual services and/or tariffs, taking into account all the circumstances of the individual case and weighing up the interests of the contracting parties. An important reason that TIVENDO entitles 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 sections 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 arrears 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 deadline despite a reminder and a one-time grace period set by TIVENDO.

11.5. TIVENDO is entitled to delete illegal content or - if necessary - to block the shop operator's access to the content in question or the 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 give the shop operator the opportunity to comment - if possible. The right to terminate for good cause remains unaffected. If the shop operator is responsible for the violation, he is obliged to compensate TIVENDO for any resulting damage.

  1. 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 agreement on order processing during registration upon conclusion of the contract.

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

  1. Changes to the Terms and Conditions and Services

13.1. The General Terms and Conditions can be changed if this is necessary to adapt to developments that were not foreseeable when the contract was concluded and which TIVENDO did not cause or can influence and whose non-consideration would disturb the balance of the contractual relationship to a not insignificant extent and insofar as this does not affect essential provisions of the contractual relationship. Essential provisions are those regarding the type and scope of the contractually agreed services and the term, including the provisions for termination. Furthermore, the General Terms and Conditions can be adjusted if this is necessary to eliminate significant difficulties in the implementation of the contract due to regulatory gaps that arose after the contract was concluded. This can be the case in particular if the case law on the effectiveness of provisions of these General Terms and Conditions changes, if one or more provisions of these General Terms and Conditions are declared invalid by the courts 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 and 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 the contract was concluded 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 TIVENDO's right to change the content of these services and/or to expand or restrict their scope.

13.4. TIVENDO can 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 the development of 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, overhead costs (e.g. for administration, marketing, rent). A price increase is possible and a price reduction is to be made if the total costs increase or decrease. Increases in one type of cost, e.g. costs for technology, may only be made to the extent that they are necessary for a price increase.
in which no compensation is made by any falling costs 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 choose the respective times of a price change in such a way that cost reductions are not taken into account according to standards that are less favorable for 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 last provided by him. The shop operator will be informed 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 in his favor, the shop operator has the right to terminate the contract without observing a period of notice in text form (e.g. by letter or email) at the time the changes take effect. The customer will be specifically informed of this in the notification of the change. The amended terms and conditions are deemed to be approved if the shop operator does not terminate the contract in writing or by email within this period of time after receipt.

13.6. TIVENDO undertakes to specifically point out the possibility of objection, the deadline and 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 sales tax and is obliged 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.

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

  1. 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 Bonn is. 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 informed 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 in text form (e.g. by letter or email) without observing a notice period at the time the changes take effect. The shop operator will be specifically informed of this in the notification of the change. The transfer of rights and obligations is deemed to be approved if the shop operator does not terminate within this period.

14.4. Should any provision of this contract be or become invalid or unenforceable, the validity of the remainder of the contract shall remain unaffected. The parties shall endeavour to replace the invalid or unenforceable provision with an effective and enforceable provision that is as close as possible in economic terms to the invalid or unenforceable provision. The same applies in the event of a regulatory gap.

Status: 01.09.2020