Last updated: 14.02.2019
(1) “Authorized User” is a natural person who is authorized to use the software product and further developments tailored to the customer’s needs in compliance with the License Agreement. Unless otherwise agreed upon in the License Agreement, Authorized Users are only those persons who are either shareholders (partners, associates) of the customer or are in a service, employment, or training relationship with the customer at the moment of contract conclusion. Any direct or indirect use by other persons is inadmissible.
(2) “Documentation” means the descriptions, instructions, and other documents concerning the software product.
(3) “Customer” is the contracting party of Products Up designated in the License Agreement. The term “Customer” means in particular entrepreneurs within the meaning of Section 14 Civil Code [Bürgerliches Gesetzbuch – BGB]. Entrepreneurs are natural or legal persons or partnerships with legal personality who or which, when entering into a legal transaction, act in exercise of their trade, business or profession.
(4) “License Agreement” is the contract concluded by and between Products Up and the Customer on the basis of these Terms Of Lease For Software, which establishes in detail the specific services described in these Terms Of Lease For Software to be used by the Customer as well as the respective scope.
(5) “Object Code” is the machine-readable form of a software program whose command structure can be directly executed by a data processing installation.
(6) A “Project” is a container (within the meaning of a file), which can be fed with lines and which contains any and all lines to be processed by Products Up. One Project can have several data sources and can combine them to one uniform data feed.
(7) “Software Product” is the standard software program in Object Code described in Annex 1, which is operated by Products Up and provided for use as a cloud software solution for a limited period of time and which can be adapted at the request of the Customer by means of further developments tailored to the Customer’s needs, including any and all updates and upgrades which Products Up possibly provides to the Customer.
(8) “Source Code” is a software product written in a programming language, which enables a suitably trained expert to read and understand the code.
(9) “Update” is a refined version of the Software Product, which fixes bugs or circumvents them and possibly also contains minor service or feature enhancements.
(10) “Upgrade” is a refined version of the Software Product containing essential modifications, service or feature enhancements.
(11) “Administered Lines” means the sum of the lines imported with the Software Product consolidated for all projects. The number of lines administrated with the Products Up Software in one calendar month is calculated as follows: For example, if the Customer has three (3) projects with 5000 imported lines each, this would correspond to an amount of 15000 administered lines. This calculation also applies, in case projects are created with the same products in order to serve different countries. In this case, the projects shall be remunerated separately in accordance with the calculation described above. A “Project” is a container (within the meaning of a file), which can be fed with lines and which contains all lines to be processed by Products Up. One Project can have several data sources and can combine them to one uniform data feed.
(1) The license of the Software Product to the Customer and its use by the Customer are exclusively subject to these Terms Of Lease For Software. Products Up does not acknowledge any General Terms and Conditions of the Customer which are contrary to these Terms, deviate from statutory provisions, or amend these Terms, unless Products Up has explicitly consented to their applicability. In any event, this requirement of consent also applies in case Products Up provides the service without reservation or accepts payments in full knowledge of the existence of the General Terms and Conditions of the Customer.
(2) These Terms Of Lease For Software only apply with respect to entrepreneurs within the meaning of Section 14 BGB, legal entities governed by public law, and special trusts under public law.
(3) At the Customer’s request, Products Up provides the Customer with a License Agreement to be signed and returned to Products Up; it becomes effective upon receipt by Products Up. In addition, these Terms Of Lease For Software apply.
(1) Subject matter of the License Agreement is the license of the Software Product as cloud solution, which is exhaustively described in Annex 1, including the corresponding documentation and the licensing of the rights of use described in Section 5 during a limited period of time. Besides the services explicitly defined in the License Agreement and these Terms Of Lease For Software, the design and construction as well as the scope of services exhaustively described in Annex 1, the parties did not agree to any additional services. At the request of the Customers, the Parties can negotiate such additional services and agree to them in a separate agreement.
(2) The Software Product is provided to the Customer together with the Documentation of Products Up as a cloud solution after the access data has been made available, thereby enabling the Customer to use and apply the Software Product within the scope of the granted rights of use.
(3) The Customer’s obligations to cooperate described in Section 4 are not subject matter of Products Up’s service obligations. Therefore, Products Up is not responsible for the Customer’s Internet connection to the Software Product and the Internet, hardware, software, technical and license requirements which have to be met by the Customer.
(4) Any statements and explanations by Products Up concerning the Software Product which are made in advertising materials, on Websites and in the Documentation are solely a description of the design and construction and shall not be deemed to be a guarantee or contractual warranty of any feature.
(5) Products Up strives for an average availability of the Software Product of at least 97.5 % per calendar month. Decisive is the availability of the Software Product at the transfer point of the Software Product to the Internet. In this regard, the availability is calculated by the following formula: availability = (total time – total down time) / total time ● 100 %.
(6) Within the scope of the calculation of the total down time, the following times will not be taken into consideration: (a) periods of non-availability due to Internet interruptions Products Up is not responsible for, other circumstances beyond the responsibility of Products Up, in particular those caused by force majeure; (b) periods of non-availability due to planned maintenance of the Software Product or the content which are carried out on a regular basis; (c) periods of non-availability due to unscheduled essential maintenance work which is necessary to eliminate malfunctions; if possible, the Customer will be notified of it; (d) periods of non-availability due to the fact that, temporarily, the necessary technical requirements for the access to the Software Product, which must be created by the customer, are not met, for example in case of disturbances of the Customer’s hardware.
(7) Products Up monitors all critical system parameters 24/7 via external surveillance solutions. All critical incidents will generate corresponding messages to the Products Up service team (current status always visible on: status-productsup.io).
(8) Products Up reserves its right to change the Software Product in order to adapt it to the state of the art, or to optimize the Software Product, in particular to improve the user-friendliness. A prerequisite for such change is that it is necessary to fix bugs, to correct errors, to update and complete the Software Product, to optimize the program or for licensing reasons. In the event that such a change results in a serious degradation of the services to which the Customer is entitled, and Products Up does not remedy the degradation within 30 calendar days in spite of a written request by the Customer to do so by finding a solution which meets the needs of the Customer in this regard as they were met at the time before the change or adaptation, the Customer is entitled to claim either a reduction of the remuneration corresponding to the degradation or to terminate the License Agreement without notice. The Customer can make use of such right of termination during a period of six (6) weeks after the change was made.
(1) The Customer’s access to the Software Product is protected by a password and is granted by means of the access data Products Up provided to the Customer. The Customer is obliged to keep the access data and the passwords confidential and to prevent unauthorized use by third parties; furthermore, the Customer must ensure that the respective users also comply with this obligation.
(2) The Customer undertakes to ensure the compliance with the requirements set forth in Annex 1. In case the Customer fails to fulfill this obligation for reasons the Customer is accountable for, Products Up is not responsible for any and all functional limitations resulting therefrom.
(3) As an obligation to cooperate of the Customer, the Customer undertakes to create the conditions for the exchange of data with the Software Product by having the suitable terminal devices at its disposition. The details of the necessary Customer obligations are defined in the technical specification, as amended from time to time, which is held available on the Website of Products Up. The Customer undertakes to hold its communication facilities ready in a functional condition and to maintain the operability in compliance with the applicable state of the art during the term of this Agreement.
(4) It lies in the responsibility of the Customer to procure any required authorizations and licenses for the operation of its hard- and software. This applies to any and all software licenses which are necessary for the intended use of the Software Product.
(5) The Customer’s obligations to cooperate described above are mandatory prerequisites for the provision of the contractual services by Products Up; they must be provided by the Customer upon contract conclusion at the latest and must be maintained during the entire term of the Agreement.
(6) The Customer shall bear its own costs, which incur for the use of the Software Product, such as for its own Internet access or for the appropriate hard- and software.
(7) The Customer must designate a suitable permanent contact person for Products Up who ensures the communication with Products Up within the scope of the contractual relationship of the parties and who is authorized to make decisions.
(8) The Customer shall notify Products Up without delay as soon as it becomes aware of a misuse of access data or passwords. In case of misuse, Products Up is entitled to block the access to the Software Product until the circumstances have been cleared up and the misuse has been ended. The Customer shall be liable for any misuse within its scope of responsibility.
(9) The Customer is responsible for the creation and the maintenance of the technical conditions for the access to the Software Product within its sphere of influence, in particular with regard to the used hardware and operating system software, the connection to the Internet and the latest browser software. Products Up provides in the Productsup Platform the information which browsers are currently supported.
(10) In case of any further development of the Software Product, it is incumbent on the Customer to carry out the necessary adjustment measures of its IT infrastructure after having been accordingly informed by Products Up.
(11) The Customer shall take the necessary measures to safeguard its systems, in particular, to use the current security settings of the browser and the latest protective mechanisms to avert malware.
(12) You agree not to misuse the Products Up services (“Services”) or help anyone else to do so. For example, you are forbidden to do any of the following in connection with the Services:
(1) Products Up grants the Customer the non-exclusive, non-assignable, and non-sublicensable right to use the Software, including any and all Updates and Upgrades which Products Up might make available to the Customer; this right shall be restricted in terms of time to the duration of the License Agreement. Insofar as the Customer is an agency, the Customer (agency) is entitled to grant all of its clients a read-only access to the Software Product via the Productsup Platform.
(2) Any and all rights of the Customer to the Software Product and its components exceeding the rights set forth in Section 5 (1) shall be excluded, in particular, but not limited to, the right to decompilation / disassembly, to a modification of the Software Product or the Source Codes belonging to the Software Product, to a public reproduction, to make it accessible to third parties or to grant them any rights of use (sale, lease or granting of licenses of all kind), even for the purpose of debugging.
(3) As an exception to the restrictions set forth in Section 5 (2), the Customer is entitled to decompile the Software Product, insofar as this is necessary to create the interoperability of the Software Product with other programs. However, this is subject to the condition that Products Up failed to provide the Customer with the respective necessary information upon request within an appropriate period of time.
(4) The rights under the preceding Section 5 (1) are only granted once to the Customer for one cloud solution of the Software Product.
(5) The Customer is not entitled to process, edit, modify, pass, exploit, disseminate, publish or use the Software Product in any other way, in particular to pass it to third parties, unless this is explicitly permitted in these Terms Of Lease For Software, or Products Up and the Customer have agreed to this in a separate contract.
(6) Rights of use which may be exercised on grounds of statutory licenses – in particular in compliance with Sections 53, 55a, 87c and 87e Copyright Act [Urhebergesetz – UrhG] are not granted by the License Agreement and these Terms Of Lease For Software and are not affected hereby.
(7) Products Up is entitled to take technical measures to prevent any use exceeding the admitted scope, in particular by installing a corresponding access blocking program. The Customer may not use any appliances, products or other means serving the purpose to circumvent or overcome the technical measures taken by Products Up. In case of any misuse, Products Up is entitled to immediately block the access to the Software Product. Further rights and claims of Products up, in particular, but not limited to, the right to terminate for cause without notice as well as claims for damages remain unaffected.
(8) The Customer is obliged to notify the Authorized Users of the preceding provisions and to ensure their compliance. Other rights and claims of Products Up in case of any use contrary to contract remain unaffected.
(1) The admissible use includes the loading of the Software Product into the main memory and the running of it, as well as the intended use by the Customer. The nature and scope of the use is set forth in Annex 1 in all other respects. In particular, the following subsections of this section 6 shall apply:
(2) The Customer may only copy the Software Product, insofar as the respective installation and copying is necessary for the use of the Software Product.
(3) The Customer undertakes to prevent any unauthorized access by third parties to the Software Product and the documentation by taking appropriate precautionary measures. The Customer’s employees must be insistently advised of the necessary compliance with the preceding contractual provisions and the provisions of the Copyright Act.
(4) Unless otherwise explicitly agreed upon, it is not permitted to the Customer to pass the licensed services to third parties for their exclusive use or for a commercial use, to transmit it to third parties, or to present itself as a provider by using the services licensed by Products Up.
(5) The Customer shall be liable for any and all damages and payments resulting from the use of the services of Products Up by third parties, insofar as the use can be attributed to the Customer.
(1) The remuneration to be paid by the Customer for the use of the Software Product, the support, and the provision of the customizing solutions is set forth in the License Agreement.
(2) For the license of the Software Product as cloud solution, which is limited in time to the term of this Agreement, as well as its operation and the rights granted for this purpose in this Agreement, the Customer shall pay to Products Up a monthly royalty in the amount set forth in the License Agreement, plus the statutory VAT as applicable at the time of invoicing.
(3) Products Up invoices the monthly royalty plus the statutory VAT, as applicable at the time of invoicing, on a monthly basis for the license for the use of the of the Products Up software and the scope, in which the Products Up software has been used according to the License Agreement in the course of the previous month. The invoices of Products Up are due for payment within the time frame agreed upon in the License Agreement after the invoice date. In case the Software Product is not licensed for an entire calendar month, the royalty is calculated pro rata temporis.
(4) For the customizing services ordered for the Software Product by the Customer and the respective rights granted for this purpose in this Agreement, the Customer pays to Products Up the hours worked in this regard, plus the statutory VAT as applicable at the time of invoicing. The expenditure for customizing services provided by Products is due and payable on a monthly basis for the customizing services provided in the course of the previous month. Invoices are issued until the seventh working day of the respective following month.
(5) The invoiced amounts are due for payment without reduction within the time frame agreed upon in the License Agreement after the invoice date. All prices are plus the statutory value added tax as applicable at the relevant moment of time, unless they are explicitly designated as gross prices.
(6) The Customer shall only be entitled to set-off or retention on grounds of uncontested claims or claims which are established as final and absolute.
(7) Products Up is entitled to increase the monthly royalty for the use of the Software Product by a written notice with a notice period of three months to the end of a month, insofar as, after contract conclusion, either the total of the necessary costs for the provision of services, in particular the costs for the maintenance and the further development of the technical infrastructure, the costs for the licensing of third-party work or the total of the costs for the customer service and the general administration have increased – even in consideration of any eventual savings of costs. In case of such an increase, the Customer is entitled to terminate the License Agreement pursuant to Section 14 (3) (special termination right).
(1) Products Up provides support services at the request of the Customer. The support is provided in the partner regions during the usual business hours of Products Up, from Monday to Friday between 9:00 am and 6:00 pm Central European Time and/or Central Standard Time. During these business hours, Products Up guarantees a reaction time of 24 hours via the “Client Success Management”: The Customer can request the support by email and telephone via the following email addresses and telephone numbers.
The royalty to be paid by the Customer only includes the scope of support services defined in the License Agreement. Any support services beyond this scope have to be paid separately by the Customer in conformity with the License Agreement.
(2) In addition to the support services agreed upon in the License Agreement, Products Up is not obliged to update the Software Product or to adapt it to changed market conditions or other conditions. These services are not included in the royalty payment and the support services and will be charged separately.
(3) Products Up will deal with the errors notified by the Customer in the following order of priority: (a) Error priority 1: errors occurred in automated data processes of the Software Product for which Products Up is responsible will be examined and identified within 12 business hours after the notification of the error by the Customer. If possible, Products Up will inform the Customer of a preliminary result within six (6) business hours after the notification of the error by the Customer. Error priority 2: Errors which occur when retailers display and process product data entries on the Software Product Platform of Products Up and any and all kinds of interface errors will be examined and identified by Products Up within 24 business hours after the notification of the error by the Customer. If possible, Products Up will inform the Customer of a preliminary result within eight (8) business hours after Products Up has been notified of the error.
(1) Products Up licenses to the Customer a Software Product, which is free from material defects and from defects in title, insofar as material defects occur within the first 12 months after the licensing of the Software Product. Errors, which only result in an insignificant reduction of the usability of the Software Product, remain out of consideration. In particular, impairments of use resulting from the sphere of the Customer or from the browser or the Internet access provider (such as hardware, operating error, faults in computer networks, data connection, Internet, force majeure or other reasons deriving from the area of risk of the Customer) shall not be deemed to be defects.
(2) Products Up will cure any occurring material defects and defects of title concerning the Software Product during the term of the License Agreement within an appropriate period of time. The warranty explicitly does not include updates of the Software, which result, for example, from any further development of supplier systems of other downstream systems of the Software Product. Products Up is not obliged to adapt the Software Product to changed operating conditions and technical and functional developments, such as modifications of the IT infrastructure, in particular changes of the hardware or the operating system, adaptation to the range of functions of competing products, or the creation of the compatibility with new data formats.
(3) Immediately after the receipt of the Software Product, the Customer shall examine it with regard to apparent defects and shall notify Products Up of their existence without delay, unless Products Up maliciously concealed the defect. In case of any and all defects which become apparent later on, the Customer shall notify Products Up within two (2) working days after they have been discovered. For the purpose of the removal of defects, the Customer shall, immediately upon request, hand out to Products Up any and all documents which are necessary for the removal of defects.
(4) Products Up does not give any warranty that the licensed Software Product complies with the special requirements of the Customer. The same applies to the error states which result from operating errors by the Customer or by third-party hard or software or by other third-party impacts, for example by damages caused by imported malware.
(1) Any and all claims for damages and reimbursement of expenses of the Customer (hereinafter “Claims For Damages“), irrespective of the legal grounds (breach of contractual obligations, contract, tortuous act, etc.) shall be excluded. This shall not apply to (i) Claims For Damages of the Customer based on loss of life, bodily harm, injury or illness caused by culpable conduct, (ii) Claims For Damages resulting from a intentional or grossly negligent breach of duty by Products Up, its statutory representatives or vicarious agents, (iii) Claims For Damages by reason of a liability under the Product Liability Act [Produkthaftungsgesetz] and (vi) Claims For Damages due to a breach of essential contractual obligations (cardinal obligations). Essential contractual obligations are contractual obligations which must be fulfilled in order to duly execute the contract; accordingly, the Customer generally relies and may rely on the compliance with these obligations. In case of a breach of essential contractual obligations, Products Up shall only be liable for foreseeable damages typical of the contract, not to exceed, however, a maximum of EUR 10,000. -, unless the Claims For Damages of the Customer are based on loss of life, bodily harm, injury or illness, or on intent or gross negligence. The general liability without regard to of negligence or fault of Products Up for defects existing upon contract conclusion pursuant to Section 536a (1) first clause BGB shall be excluded.
(2) The restrictions regarding the exclusion and limitation of liability set forth in Subsection 1 shall also apply to the benefit of the statutory representatives and vicarious agents of Products Up, in case the Customer asserts any claims directly against them.
(3) The above regulations do not lead to a change of the burden of proof to the disadvantage of the Customer.
(3) The obligations set forth in Sections 11.1 and 11.2 shall not apply, in case the Customer is not responsible for the infringement.
(4) Further claims and/or rights of Products Up shall remain unaffected hereof.
(1) Products Up remains the owner of any and all rights to the Software Product, even if the Customer modifies the Software Product or connects it with its own programs or contents, or those of a third party. The Documentation provided to the Customer remains property of Products Up. The Customer is the owner of any and all results and contents the Customer generated in or with the Software Product.
(2) The computer programs, in particular the Software Product are protected under Sections 69a et seq. UrhG, any manuals and Documentation and work provided as content are protected by Section 2 UrhG. Any third-party rights to the protected work remain unaffected.
(3) Trademarks, logos, other signs or protective notes, copyright notices, serial numbers and other identification characteristics may not be removed or modified, neither in the electronic format nor in printouts.
Products Up will provide the Customer with any and all possible (voluntary) Updates and Upgrades for the respective ordered Software Product during the term of this Agreement after they have been released, without the need for additional payment, and will grant the Customer the rights of use concerning the Software Product agreed upon in this Agreement.
(1) This License Agreement enters into force on the day it has been signed by both parties and is concluded for an indefinite period. The Agreement can be terminated with a notice period of three (3) months, unless otherwise regulated in this License Agreement.
(2) Regardless of any other rights or claims, a party is entitled to terminate the Agreement without notice, in case
(a) the other party is in breach of one of its essential contractual obligations by culpable conduct and fails to entirely cure such breach die despite a written warning without delay, but at the latest within fourteen (14) days after the reminder, or
(b) the other party requested the opening of insolvency proceedings against its assets, the court decided to open such proceedings against the assets of the other party or dismisses the proceedings for lack of assets.
(3) Products Up will notify the Customer of an adaptation of the remuneration pursuant to Section 7.7 in writing or in text form and will refer to the Customer’s special termination right as well as to the consequences of a failure to ensure the receipt of the notice of termination by Products Up in due time. The Customer is entitled to terminate the License Agreement within a period of four weeks after the receipt of the notice concerning the increase; the termination takes effect on the day the price adaptation enters into force. In case the Customer does not send a notice of termination or fails to do so in due time, the License Agreement will remain in force and the new remuneration will apply.
(4) Any and all notice of termination requires the written form (email address: email@example.com).
(5) Upon termination of the Agreement, Products Up is entitled to immediately block the access to the Software Product and/or to discontinue the services.
Products Up is entitled to name the Customer as a reference customer of Products Up on its Website, in its presentations and offers and to make such reference available and publicly known as an indication of the common economic relationship, insofar as the parties have agreed on this in the License Agreement. The compliance with the duties of notification by reason of mandatory statutory or administrative provisions or on grounds of mandatory rules issued by stock exchanges or comparable trading places is admissible without the consent. In this event, a prior consent is not necessary.
(1) With regard to the protection of personal data, Products Up and the Customer undertake to comply with the provisions of the applicable laws, as amended from time to time. Products Up collects, processes, and uses personal inventory and usage data in a machine-readable form within the scope of the intended purpose of the contractual relationship. Any and all personal data will be treated with confidence.
(2) Products Up and the Customer will read up on the requirements of the applicable data protection laws and, if necessary, instruct the other party accordingly, so that the other party also meets the requirements of the applicable data protection laws.
(1) Any and all information concerning the Software Product shared within the scope of the present Agreement, be it orally, in writing or in pictorial form, shall be deemed to be confidential, unless they were explicitly labeled as non-confidential at the time of disclosure and/or in case they are obviously non-confidential due to their nature, such as:
(a) information which was already known to the Customer without any nondisclosure obligation prior to the first communication by Products Up,
(b) information which was already accessible to the public at the time of disclosure or which was made accessible to the public later on without any breach of nondisclosure obligations incumbent on the Customer or third parties,
(c) information which the Customer received from a third party in good faith, who, for his/her/its part, is not subject to any non-disclosure obligations vis-à-vis Products Up with regard to such information,
(d) information which must be disclosed under the applicable law or by a court order.
(2) The Customer shall only use confidential information of Products Up to achieve the purpose of the contract and shall protect them with diligent care. The disclosure of confidential information to third parties requires the prior written consent of Products Up.
(1) Any and all claims of the Customer based on material defects or defects in title – except for claims for damages – become statute-barred within one year as of the licensing of the Software Product by Products Up.
(2) Any other claims of the Customer based on contract or a contractual obligation (Section 311 (2) BGB) are subject to a prescription period of one year as of the beginning of the statutory prescription period. The claims become statute-barred upon expiry of the longest statutory prescription periods (Section 199 (3) and (4) BGB).
Products Up can change these Terms of Lease For Software in accordance with the sentences below provided that the change does not have any impact on the contractual content that is material for the equivalency of the essential contractual rights and obligations between the parties and provided that such change is reasonably acceptable for Customer.
(1) Products Up will inform Customer about the change of the Terms of Lease For Software in writing;
(2) If, in this case, Customer does not expressly disagree in writing within four weeks after receipt of the change notice, the change will be deemed to be effected and from this point in time, the changed version of the Terms of Lease For Software is binding for the existing agreements between Products Up and Customer;
(3) Products Up will draw attention to this consequence in the change notice.
(1) The laws of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UN sales law / CISG).
(2) Place of fulfillment is the registered office of Products Up. Exclusive place of venue for any and all disputes arising under or in connection with the Agreement with merchants, public legal entities or special funds under public law shall be Nuremberg, Germany.
(3) Should any provision of the Agreement concluded with the Customer be or become invalid, either partially or entirely, the validity of the other provisions shall remain unaffected hereof.
(4) Any modifications and amendments of the Agreement concluded with the Customer require the written form. This shall also apply to a waiver of this written form requirement. Any modifications and amendments must be explicitly identified as such and must be signed by authorized representatives of the parties.
Annex 1: Specification of Services
Data Management / Processing
Product Content Syndication
Seller / Vendor Onboarding
Marketplace/Order Management Package
Video Rendering Package