ERABIA – TERMS & CONDITIONS

SCOPE

1.1 These Terms and Conditions shall apply to all services supplied by Erabia to the Client, relating to the usage of Erabia’s technology, and services, including, but not limited to the e-commerce Platform (the Platform), static content, other third-party software and solutions, and Erabia’s technology and professional services. These terms shall also apply to all supplemental future orders and any enhancements to the existing Platform. An expressed inclusion of these Terms and Conditions shall not be required for future orders and enhancements. Any terms and conditions of the Client shall not apply.

1.2 Erabia reserves the right to include specific and additional terms with respect to specific modules and components of the Platform and other software applications and with respect to services rendered by third party suppliers as sub-contractors of Erabia. In such cases any specific terms agreed to shall prevail to these Terms and Conditions. Any application of specific terms shall be brought to the Client’s attention.

RIGHTS & RESPONSIBILITIES

2.1 Erabia Platform is a web-based e-commerce software application (the Platform) and facilitating the creation and management of online stores. Erabia shall provide the Client with the Platform on a Software as a Service (SaaS) basis via the Internet.

2.2 Erabia grants the Client a non-exclusive, non-assignable, non-sub-licensable right to use the Platform, all associated third-party software and all of Erabia services via Erabia’s computing center for specific fees based either on transactions taking place on Erabia Platform or on usage of the Erabia platform and services for the duration of this contract and in accordance with the intended use. The Platform is not hired out to the Client nor is it licenses. The Client is entitled to have the Platform used by its own employees or, with Erabia’s expressed consent, by a commissioned third party (such as an agency). In addition, the Client’s customers and the general public may use this platform through the Client’s online store, web-interface and any other digital media provided by Erabia to the Client for the purpose of interacting with the Client’s customer’s and the general public. In the event of use by a third party, such third party must be bound by these Terms and Conditions together with any supplemental terms agreed in respect of use by the Client.

2.3 The Client may use the Platform solely for the purpose of processing its data. Using the Platform to process the data of third parties is prohibited. The Client may only use the Platform for a third party (such as for affiliated companies or an agency) with Erabia’s expressed consent.

2.4 The Client shall not be entitled to reverse-engineer, decompile, disassemble or attempt in any way whatsoever to de-code the source code of the software. The Client is strictly prohibited from making copies or reproductions beyond the extent required for the use of Platform.

2.5 Erabia grants the Client a non-exclusive, non-assignable, non-sub-licensable right to certain material such as presentations, studies, sample content, training material and other documents which Erabia makes available to you, the Client. It is your responsibility to carefully review, customize and use this material as you see fit without assigning any responsibility to Erabia. For avoidance of doubt, the use of any such material shall be at the sole discretion and responsibility of the client and the client agrees to hold Erabia harmless against any errors, omissions or damages that may result from the use of such material.

DOCUMENTATION & ACCESS

3.1 Erabia shall provide certain documentation for the use of the Platform in an electronic format for retrieval via Erabia’s servers in English. The Client is prohibited from forwarding this documentation to any third party. Reproductions or copies of the documentation are strictly prohibited. The Client is only allowed to hold sufficient copies on their personal computer to enable them to use the Platform. Upon Termination of this contract the Client warrants that they shall destroy, delete and discontinue using any of the aforesaid documentation.

3.2 To help protect the confidentiality of the Platform and of Client data, the Client can assist by ensuring that it takes measures to protect its login details. Login details have to be changed upon receipt. The Client will immediately inform Erabia in the event that login details have been lost or compromised in any way whatsoever. The Client will immediately block the login of any Client user that no longer requires a certain login, for instance because an employee has left the company.

DATA PROTECTION

4.1 Erabia attaches utmost importance to data protection and data security. For the purpose of providing the Platform services Erabia acts as a data processor for the Client. Erabia will strictly adhere to Client instructions for the use of any data made available and to warrant and obey the all the local laws concerning the technical and organizational measures for Data Processors.

4.2 As between Client and ERABIA, Client is the sole owner of all right, title and interest in and to the Client Data, and all Intellectual Property rights therein. Company hereby grants ERABIA a non-exclusive, non-transferable, non-assignable right to use the Client Data only to the extent necessary for ERABIA to perform its obligations hereunder.

PROVISION OF SERVICES

5.1 Erabia shall make the Platform available for use in a high-security computing centre and shall carry out all servicing and maintenance work necessary for maintaining its operation. The Platform shall be made available in line with state-of-the-art technology.

5.2 Unless otherwise agreed by contract, the Client shall have no entitlement to an own IP address from Erabia’s IP range or a physical server or a dedicated transmission capacity and bandwidth.

5.3 Erabia shall provide the Client with online store under the client’s own domain name or a domain name of the Client’s choice. It shall be the Client’s sole responsibility to maintain the domain registration and pay the fees associated with the registration and renewal of the domain. The Client must delegate the stores domain to Erabia’s servers at least 5 working days prior to the planned system set-up. The system set-up shall be considered complete when the basic system is set up and the Client has been provided with access data.

5.4 Erabia may appoint subcontractors to fulfil its obligations under this contract. Subcontractors shall be selected with due care. With data processing subcontractors a data processing agreement shall be concluded that complies with statutory requirements and the spirit and intent of this agreement. Commissioning of subcontractors shall not affect the contractual and data protection obligations of Erabia under the terms of this contract.

5.5 Technical data, specifications, performance descriptions in the documentation and statements on the subject matter of the performance shall be understood exclusively as a description of the quality and not as an independent guarantee, assurance of quality or durability.

5.6 Neither party shall be liable for damages or have the right to terminate this Agreement “with cause” for any delay or default in performing the obligations hereunder if such delay or default is caused by conditions beyond its control including, but not limited to acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.

STORING OF DATA

6.1 Erabia hosts the data provided by, and possibly collected for the Client in the Client’s the Platform system in a high-security computing centre.

6.2 The storing of information, product content, pricing, evaluations, reviews, images, orders, links, etc. (“Client data”) requires large storage capacities. Erabia reserves the right to archive any Client data that remains unused for a period of 6 months or longer. Archived data shall be kept for a maximum period of 3 years and then, at Client’s option, shall be either permanently deleted or transferred to the clients’ own archival system. Direct access to archived data via the Platform is not possible. Access to archived data and backups can be commissioned by the Client for a fee.

6.3 All data provided by the Client shall be deleted from the Client’s online store immediately upon request by the Client and/or upon termination of the contract.

6.4 In the event of a termination of the contract, the Client shall have access to back up its data inventories, stored in the Platform, on its own systems through download/export until the notice period ends. One the notice period ends, the Client will no longer be able to access the system.

6.5 The Client shall be responsible for compliance with all statutory retention requirements. Erabia will not store or hold records for or on behalf of the Client.

OBLIGATIONS OF THE CLIENT

7.1 The Client requires a current version of a common internet browser and internet access in order to use the Platform.

7.2 The transmission of Client’s Private Data in a non-encrypted form can endanger the confidentiality of the data. Hence, private data forwarded to Erabia for import into the Platform must be provided by the Client via a secure connection (e.g. sFTP). Erabia shall provide admissible capabilities for the transmission of data.

7.3 It is Erabia’s principle that Client’s Private Data shall be stored within the high secure environment of the Platform only. Hence for security reasons the data provided on Erabia FTP/sFTP servers will be deleted after 30 days unless otherwise agreed.

7.4 For the services provided by Erabia such as the implementation of interfaces, importing of digital catalogs, programming or managed services, all materials, files and information, required by Erabia for the provision of the services must be forwarded to Erabia within a reasonable time and unsolicited.

7.5 The Client will also support Erabia in the fulfilment of Erabia’s contractual obligations. The Client shall for example (i) appoint a responsible, authorized person who has the decision-making powers required for the purpose of performing the contract; (ii) dedicate sufficient resources to the online store whether for producing and maintaining product information, images and pricing, merchandising, promotions, processing of orders, fulfilment and returns, (iii) provide regular maintenance of the online storefront and keep current and accurate all product information, images, pricing, and other media and content associated with products or services offered; (iv) promote the online store actively and sufficiently and prevent diverting the sales away from the online store to the physical store and (v) in the case of non-availabilities, faults, errors, problems or other abnormalities that occur on the system the Client shall observe the symptoms in detail and report them to Erabia in writing. The aforesaid is not intended to be an exhaustive list but some examples of the level of cooperation that may be required by the Client. Reports may only be made by the authorized persons or in his absence by his deputy.

7.6 The services mentioned in article 7.5 above are provided free of charge by the Client. These are substantial contractual obligations. If the Client is in breach of his obligation to cooperate, Erabia is under no obligation to provide services, as long and to the extent that Erabia is prevented from performing the services due to non-cooperation by the Client.

7.7 If a service of Erabia is not provided or inadequately provided because the Client is in breach of its obligation to cooperate or it has failed to provide Erabia with the materials required for the provision of services which has meant that the service provided hereunder is incomplete, delayed or defective, Erabia shall have the right to full remuneration, unless Erabia failed culpably to utilize free resources until the point for that the performance was originally scheduled for.

7.8 No illegal content: All content including but not limited to, product description, images, multimedia, banners, promotions, alerts, and emails posted on or transmitted via the Platform must comply with all legal requirements in terms of both form and content. The Client is obliged to comply with all statutory provisions and not contravene these and the rights of third parties in connection with the use of the Platform, including but not limited to (i) not to submit, save, link or otherwise indicate content that is pornographic, implicitly or explicitly sexually suggestive, threatening, insulting, harassing, defamatory, fraudulent, vulgar, obscene, hateful, left or right wing extremist or glorification of violence, or that invades personal rights, or contravenes the laws for the protection of young persons or calls for or abets infringement of laws, (ii) not to submit, save, link, or otherwise indicate content that violates rights of third parties, including, but not limited to, trademark rights and rights to other signs, copyrights, patents, designs and utility models and trade secrets, and (iii) not to submit, save, or link any malware (such as viruses) or otherwise indicate malware. The onus is on the Client to ensure compliance with all applicable legislation at all times.

7.9 Responsibility: The Client shall be legally responsible for all content posted to or transmitted through the Platform. Erabia shall not be obliged to check the content of the online store or of any alerts, emails, links, postings, reviews, etc. posted to or transmitted through the Platform. Client shall guarantee that it has any applicable official permits, licenses and permissions required for the services or products promoted through use of the service or that it has carried out any official registrations that may be required by law.

SYSTEM AVAILABILITY

8.1 Erabia attaches the greatest importance to high reliability of the Platform and fault-free operation with interruptions kept as few and as short as possible. Nevertheless, periods of temporary unavailability, caused by servicing and maintenance work, and downtime resulting from technical faults cannot be completely excluded despite the greatest of care.

8.2 The availability of the Platform is defined as follows:

The maximum availability (Availability A = 100 %) is defined as 365 days x 24 hours less the time for scheduled and notified servicing (maximum 12 months x 8 hours). Erabia shall guarantee a minimum availability of 99.9 % on average for the year, calculated using the following formula: (“A” less downtime/DT) divided by (A). Downtime for which Erabia is not responsible will not be included in the calculation.

The Platform is made up of several fundamental partial services. Accordingly, the availability of the Platform is calculated on the basis of the availability of the fundamental partial services made up of web availability/front-end (50 %) and shopping cart & checkout availability 25 % respectively).

Downtime (DT) is the time required for restoration (troubleshooting or workaround) of a fundamental partial service, measured from the time of reporting of the failure by the Client through to restoration.

Planned and notified servicing periods are the times planned by Erabia and advised to the Client in which servicing is carried out on the infrastructure for the purpose of enabling fault-free operation. Downtimes for which Erabia is not responsible are periods in which the service is not available as a result of faults and problems in Internet traffic, force majeure, faults caused by components outside the area of responsibility of Erabia, incorrect operation or abuse of the service by users.

8.3 In the unlikely event of the availability of the service being below the minimum availability, Erabia will assess the effect this has had on the Client. The assessment may take the form of a reduction, in terms of the regular services not charged by time, in the monthly invoice following the period in which the availability rate has been underachieved. A reduction of 10% shall apply for each 0.1% by which the availability rate determined is below the minimum availability rate. The reduction is limited to a maximum of 40%. The Client must prove that every alleged amount that exceeds the aforementioned sum of damage, especially shall the Client prove every additional form of damage.

REMUNERATION

9.1 All remuneration shall be subject to statutory value added tax at the rate applicable. Payments shall be due immediately following invoicing and without deduction.

9.2 The fees for using the Platform, for regular services and for services to be remunerated on a one-off or time basis must be paid each calendar month and will be invoiced after the end of each calendar month.

9.3 The use of the Platform is charged on the basis of the actual transactions taking place on the Platform unless otherwise agreed. The transaction fees agreed upon in the proposal shall be invoiced at the end of each calendar month in accordance with the increments indicated in this agreement, i.e. the rate stated for increment 1 shall apply for the transactions totaling the amount of increment 1, the rate stated for increment 2 shall apply for the transactions that exceed in total increment 1 and have not in total exceeded the upper threshold of increment 2, etc.

9.4 If the Client is in more than 1 (one) month’s arrears for payment of an invoice or if a petition for insolvency proceedings is filed against it, Erabia may withhold all further services and invoice all services already provided. In such cases, Erabia shall also have the right to terminate the contract without notice however the contractual fees due for the duration of the term will remain payable.

9.5 If employees of Erabia undertake external appointments at the request of the Client, travel and any other agreed expenses will be charged to the Client.

LIMITATION OF LIABILITY

10. Where no individual agreement on liability is made, regardless of the legal basis on which any claim is brought, Erabia shall be liable to pay damages or reimburse futile expenses in accordance with the following provisions:

10.1 LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Client’s exclusive remedy for any breach of this agreement by Erabia is as set forth below in articles 11.3 and 11.4. Except for any refund we elect, CLIENT IS NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Platform does not fulfil the stated purpose of this agreement (i.e., the creation of online store), and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 11.2 below (are also incorporated into this Limitation on Remedies.

10.2 EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. In no event will Erabia be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Platform, the provision of or failure to provide Support Services, or otherwise under or in connection with any provision of this AGREEMENT, even in the event of our fault, tort (including negligence), strict liability, breach of contract or breach of warranty, even if we have been advised of the possibility of such damages.

11.3 Erabia shall be liable for ordinary negligence only in so far as fundamental contractual obligations are infringed; in this case liability shall be limited to loss which is foreseeable and typical for this type of contract. Contractual obligations shall be regarded as fundamental if the infringement thereof jeopardizes the achievement of the contractual purpose, performance thereof is necessary to facilitate proper execution of the contract and clients usually rely on the satisfaction thereof.

11.4 In the cases governed by item 11.3, Erabia’s liability shall be limited to a maximum of the fees that the client paid to Erabia after the breach occurred.

TERM & TERMINATION

12.1 The contract comes into effect on the date the Client Completes the customer registration form (Effective Date).

12.2 The Term of the contract shall commence from the Effective Date and shall remain in effect until terminated by the Client or by Erabia in accordance with clauses 12.3-12.6

12.3 The Client may terminate this agreement at anytime with or without cause. Erabia may terminate this agreement only with cause. Terminating the store does not relief the parties from contractual obligations assumed prior to the termination date or through the notice period as per articles 12.4, 12.5 and 12.6 herein.

12.4 Should the termination be with cause on part of the client (e.g., Erabia’s failure to perform its tasks as represented in this agreement), the Client must provide Erabia with a termination notice that must include a valid cause of termination as well as a 4-week “cure” period during which Erabia must either accept the termination or correct the cause leading to the termination

12.5 If the Client is terminating the Services without cause, then the Client must provide Erabia with a written termination notice as follows:

  • Prior to launching, the Client’s online store, a 4-week notice is required.
  • After launching the Client’s online store, a three-month notice is required.

The Client must pay Erabia for all services provided and any fees that are due up to the date of service termination including the notice period stated above.

12.6 Should Erabia be terminating this agreement with cause (The Client’s failure to comply with articles 7 and 9 of this agreement) then Erabia shall provide a termination notice that must include the cause of termination as well as a 4-week “cure” period during which the Client must either accept the termination in writing or prove that it can fulfil its stated obligations to Erabia.

CONFIDENTIALITY

13. The content of the Proposal, the contract, Appendices and all other information declared confidential by the Client or by Erabia must be treated as strictly confidential by the parties and must only be disclosed to third parties if this is mandatory for legal reasons. However, information of which the Client or Erabia was demonstrably already aware prior to the start of the contract negotiations or which has become public knowledge subsequent to conclusion of the contract without the involvement of the Client or Erabia, shall not apply as confidential information.

STATISTICS & MARKET RESEARCH

14. Erabia has the right to evaluate transactions, store visits, clicks, views, transmissions and other processes that take place on the Platform, to use these evaluations for statistical purposes and for market research purposes, as well as to publish these evaluations. No Private Data will be processed within the scope of these evaluations. The Client will never be identified in publications and no evaluations will be published which allow conclusions concerning the Client’s operations. During the course of these evaluations, Erabia may attempt reach some or all of the platform users to conduct surveys and market research activities.

ERABIA NEWSLETTER

15. Erabia shall, from time to time, transmit to a database of registered users, visitors, followers, fans, etc. a newsletter announcing the news of launching of client stores, highlighting certain products and promotions, or sharing news or other publicly available information about the Client. The Client, however, has no right to demand edits, alterations, additional content or make demands related to the frequency or timing of the newsletter transmissions.

NO ILLEGAL CONTENT

16.0 All content uploaded by the client to the Erabia platform must comply with all legal requirements in terms of both form and content. The Client is obliged to comply with all statutory provisions and not contravene these and the rights of third parties in connection with the use of Erabia Platform, including but not limited to (i) not to submit, save, link or otherwise indicate content that is pornographic, implicitly or explicitly sexually suggestive, threatening, insulting, harassing, defamatory, fraudulent, vulgar, obscene, hateful, left or right wing extremist or glorification of violence, or that invades personal rights, or contravenes the laws for the protection of young persons or calls for or abets infringement of laws, (ii) not to submit, save, link, or otherwise indicate content that violates rights of third parties, including, but not limited to, trademark rights and rights to other signs, copyrights, patents, designs and utility models and trade secrets, and (iii) not to submit, save, or link any malware (such as viruses) or otherwise indicate malware. The Client is aware that emails sent to recipients outside of their country or region may be subject to the laws of the destination country and in this case must comply with such laws. The onus is on the Client to ensure compliance with all applicable legislation at all times.

MISCELLANEOUS

17.1 Erabia is entitled to mention the Client or its brand name or logo as a reference. This authorization applies to marketing documents, the Internet presentation of Erabia and other online and offline publications, and also includes the use of the Client’s logo.

17.4 The headings in these Terms and Conditions are merely for the purpose of clarity; they are not part of the Terms and Conditions and are not intended for interpretation thereof.