TERMS OF USE

Updated: May 10, 2025

Please read these Terms of Use fully and carefully before using the Site and Services (as described in Section 1 below). These Terms of Use, including the other documents incorporated at Section 1a below (together, the “Agreement”) set forth the legally binding terms and conditions for your use of the Site and Services.

BY ACCESSING THE SITE OR REGISTERING FOR AND/OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT[1] AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES REFERENCED HEREIN, EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME AS SET FORTH BELOW. YOU MUST NOT USE THE SITE OR THE SERVICES IF YOU DO NOT UNCONDITIONALLY ACCEPT THIS AGREEMENT. YOU MAY ONLY USE THE SITE AND THE SERVICES EITHER: (I) ON BEHALF OF AN ORGANIZATION; OR (II) IF YOU ARE AN INDIVIDUAL ACTING WHOLLY OR MAINLY FOR BUSINESS PURPOSES. YOU MUST NOT USE THE SITE OR THE SERVICES IF NEITHER (I) NOR (II) APPLIES TO YOU. If you are accepting on behalf of an organization, you represent and warrant that you have the authority to do so; however, if your organization has entered into a separate contract with Commercewerk covering its use of the Services, then that contract shall govern instead of this Agreement to the extent of any conflict. EXCEPT FOR CERTAIN TYPES OF DISPUTES DEFINED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND Commercewerk SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. In this Agreement, “Customer” shall refer to you, unless you are accepting on behalf of an organization in which case “Customer” shall mean that organization; and “Commercewerk” shall refer to the contracting entity identified in Schedule 1, the relevant contact and other details for which are set out in Schedule 2. Commercewerk and Customer are each referred to in this Agreement as a “Party” and collectively as the “Parties.” In consideration of the terms and covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.

1. Commercewerk’s Services. Commercewerk offers a variety of communication-enabling services (“Services”) described at https://commercewerk.de/(the “Site”), which include its APIs, SDKs, software, code snippets, documentation, other technical support, the Site itself, and the other features, functionality, and connectivity provided through Commercewerk’s proprietary platform. This Agreement governs the Parties’ respective obligations regarding the Site and all Services provided to or used by Customer.

a. Additional Terms and Policies.

This Agreement incorporates the following additional terms: The terms of the Commercewerk Privacy Policy accessible at https://commercewerk.de/en/privacy-policy (“Privacy Policy”) shall also apply to the use of the Services and the Site. To the extent of any conflict between these Terms of Use and any of the foregoing additional terms and policies, the latter shall govern. Changes to the Services. Commercewerk reserves the right to make changes to the Services from time to time, including in response to changes in the industry and changes to carrier and other Commercewerk partner requirements or to applicable law and regulations. It is Customer’s responsibility to ensure that its usage is compatible with the functionality of the then-current Services. Commercewerk shall use reasonable endeavors to maintain backward compatibility or, where it cannot, Commercewerk shall provide at least 60 days’ notice to Customer prior to implementing any changes that do not maintain backward compatibility by posting a notice on the Site or by sending Customer notice through the Services, or by another appropriate means of electronic communication. Commercewerk may in its reasonable discretion, suspend or discontinue any of the Services or components thereof at any time, in which case Commercewerk shall notify Customer by posting a notice on the Site or by sending Customer notice through the Services, or by another appropriate means of electronic communication.

2. Customer Account. To access and use certain Services including via the Site, Customer must create an account (“Account”) on the Site. Customer shall provide accurate, complete, and current Account information and, as applicable, timely update the same. Customer is solely responsible for the activity that occurs on its Account (which includes its sub-accounts), including via the Customer Application (as defined below), and for keeping its Account password secure. Subject to Section 11a, Commercewerk will not be liable for losses caused by any unauthorized use of the Account. Customer represents and warrants that it is duly authorized to do business and use the Services in all jurisdictions in which Customer operates. Customer shall notify Commercewerk promptly of any change in Customer’s eligibility to use the Services (including any changes to or the revocation of any required licenses), breach of security or any known unauthorized use of Customer’s Account. Upon termination of this Agreement, Customer may delete its Account by emailing support@commercewerk.de. Notwithstanding deletion of Customer’s Account and subject to the terms of the DPA, Commercewerk may retain Customer data as reasonably necessary for compliance with applicable law and regulations.

3. Fees and Payment

a. Paid Services.

Customer agrees to pay the charges and fees applicable for its use of the Services as set forth on the pricing page on the Site (accessible here), as may be updated from time to time, except and only to the extent that either: (i) Customer has entered a separate written agreement or addendum with Commercewerk for special pricing on certain Services and/or country-specific pricing; or (ii) Commercewerk and Customer have otherwise agreed in writing that special pricing shall apply, in which case the pricing in (i) or (ii) shall instead apply. In addition, Customer agrees to pay additional charges and fees for excessive or abusive usage of the Services as set forth in the AUP or any charges imposed on a third party for Customer’s violation of the AUP. Commercewerk reserves the right to change all applicable charges and fees from time to time, upon providing reasonable advanced notice to Customer by posting a notice on the Site or by sending Customer notice through the Services, or by another appropriate means of electronic communication. Customer’s continued use of the Services after such a price change becomes effective constitutes Customer’s agreement to pay the revised charges and fees.

b. Prepayment.

Except as set forth in Section 3c, Customer shall pay in advance for the Services in the currency and in accordance with the frequency and timing specified by Commercewerk, without the right of set-off, deductions, or counterclaim. For certain Services, Commercewerk may accept recurring period charges as agreed to by Commercewerk and Customer on the Site. By choosing such auto-reload payment plan, Customer acknowledges that such Services have a recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation.
Commercewerk MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY Commercewerk) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE Commercewerk COULD REASONABLY ACT UPON THE NOTICE RECEIVED FROM CUSTOMER. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR ITS BILLING ACCOUNT. IF CUSTOMER HAS REQUESTED AUTO-RELOAD PAYMENTS, CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP ITS BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY Commercewerk OR ITS PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE IN THE ACCOUNT DASHBOARD. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT Commercewerk MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF PAID SERVICES UNDER THE BILLING ACCOUNT UNLESS CUSTOMER HAS CANCELLED AUTO-RELOAD OR TERMINATED ITS PAID SERVICES AS SET FORTH ABOVE.
Customer may change its payment method or terminate any auto-reload authorization via the Account dashboard.

c. Post-payment.

Where agreed by the Parties in writing, Commercewerk will invoice Customer for the Services monthly in arrears, and payment shall be due 30 days following the date of invoice, without deduction. Invoices may be sent to the e-mail address specified in Customer’s Account and shall be deemed received on the date sent. Customer shall pay interest on overdue amounts at a rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, and shall be responsible for all costs of collection. If Customer disputes any invoiced charges exceeding EUR 1,000 (or the equivalent in another currency) by notifying Commercewerk of the same within the time period and in accordance with the requirements set out in Section 3e, then Section 3e shall apply with respect to the dispute and Customer may withhold payment of the disputed amount until the resolution of such dispute. If Customer disputes any invoiced charges that do not exceed EUR 1,000 (or the equivalent in another currency), Customer shall pay the disputed amounts in accordance with this Agreement pending resolution of the dispute. Customer’s credit shall be limited to the amount determined by Commercewerk from time-to-time in connection with Customer’s Account.

d. Taxes.

Unless otherwise provided on the pricing page on the Site, all applicable charges and fees for the Services are exclusive of any country, province, federal, state or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments and withholdings (“Taxes”). Customer will be solely liable for and will pay upon demand all Taxes associated with Customer’s access to and use of the Services and shall not deduct any such amounts, or any other withholdings, set-offs or deductions, from amounts Customer owes Commercewerk, but will not be responsible for taxes based on Commercewerk’s net income. Customer may present Commercewerk with an exemption certificate eliminating Customer’s and Commercewerk’s liability to pay certain Taxes. Once Commercewerk has received and approved the exemption certificate, Customer shall be exempt from those Taxes on a going-forward basis. If, a taxing jurisdiction determines that Customer is not exempt from Taxes and assesses those taxes, Customer shall pay those Taxes to Commercewerk, plus any applicable interest or penalties.
SUCH NOTICE WILL NOT AFFECT FEES AND CHARGES SUBMITTED BEFORE Commercewerk COULD REASONABLY ACT UPON A RELEVANT DEVELOPMENT.

e. Billing Disputes.

Billing disputes must be initiated by Customer within 30 days of the date on which the relevant invoice was issued (or, if none, the end of the Service period to which the disputed charges or fees relate), by contacting Commercewerk at support@commercewerk.de. Upon expiration of such 30-day period, Customer will not be entitled to dispute any charges or fees paid or payable to Commercewerk. The Parties will work together in good faith to resolve billing disputes. A pending billing dispute shall not exempt Customer from timely paying any undisputed amounts owed. Any disputes that cannot be resolved in accordance with the foregoing shall be handled in accordance with Section 13 below. Other than in accordance with the foregoing or as set out elsewhere in this Agreement, charges and fees paid are non-refundable.

4. Customer Application – License

Subject to Customer’s compliance with this Agreement, Commercewerk hereby grants Customer a limited, revocable, personal, non-exclusive, non-transferable, (except as set out in this Section 4) non-sublicensable license from the date on which Customer is provided access to the relevant Services until the earlier of the date on which this Agreement or Customer’s Account is terminated (the “Term”), to: (i) use the documentation and APIs Commercewerk makes available to Customer to create an original application that interfaces with the Services (“Customer Application”); and (ii) make the Services available to Customer’s end users (“End Users”) through the Customer Application. Customer is permitted to sub-license the above license to Customer Affiliates (as defined below), provided that: (i) such Customer Affiliates are acting via Customer’s Account; (ii) Customer shall be fully responsible and liable to Commercewerk for the acts or omissions of such Customer Affiliates as if they were the acts or omissions of Customer under this Agreement; and (iii) Customer will remain the single point of contact for Commercewerk with respect to this Agreement. An “Affiliate,” with respect to a Party, means any entity that controls, is controlled by, or is under common control with that Party.

5. Restrictions.

Customer shall (and shall procure that its End Users and Affiliates shall) not, and shall not authorize, assist or enable any other party to:

a. transfer, resell, lease, license, or otherwise make available the Services to third parties, except for Customer’s use of the Services to provide its Customer Application to third parties as set forth in Section 4;

b. use the Site or the Services in any manner that violates the AUP;

c. decipher, decompile, disassemble, reverse engineer or otherwise apply any other process or procedure to attempt to derive any source code or underlying ideas or algorithms of any part of the Site or the Services, except that this restriction shall not apply to the extent prohibited by applicable law;

d. alter, modify, translate, or otherwise create derivative works of any part of the Site or the Services, except: (i) as may be authorized by specific licensing terms entered into by Commercewerk that accompany certain software or software development kits provided by or on behalf of Commercewerk; and (ii) that this restriction shall not apply to the extent prohibited by applicable law;

e. use the Services in connection with any call types that would result in Commercewerk incurring originating access charges, local exchange carrier “DIP” fees or other call types that may be subject to any reverse billing process, application or charge; orf. use, or permit to be used, the Services in any manner intended to avoid incurring any charges or fees properly due to Commercewerk under this Agreement.

6. Intellectual Property.

a. Customer’s Application and Application Content.

Customer or its licensors own and reserve all right, title and interest (including intellectual property rights) in Customer Applications, and any content originally posted or transmitted by Customer or its End Users via the Customer Applications or Services (“Application Content”). Customer authorizes Commercewerk to use and to permit to be used, the Application Content to provide the Services and perform its other obligations and exercise its rights under this Agreement.

b. Suggestions.

Customer’s suggested improvements to and feedback regarding the Site and the Services are not Confidential Information (as defined below), and Customer grants to Commercewerk an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose.

c. Commercewerk Services and Commercewerk Content.

Commercewerk or its licensors own and reserve all right, title and interest (including intellectual property rights) in and to the Site and the Services and all related documentation and materials provided by or on behalf of Commercewerk in connection with the same, including in each case all improvements, modifications and derivative works thereof. Other than the Customer Application and Application Content, right, title and interest (including intellectual property rights) in and to all content made available by or on behalf of Commercewerk through the Site or the Services (collectively, “Commercewerk Content”) are owned and reserved by Commercewerk or its licensors.

d. Publicity.

Except as explicitly granted herein, neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its Affiliates without the express prior written authorization of the other Party. Customer will not issue any press release or other public statement relating to this Agreement, except as may be required by applicable law or regulation, or agreed by Commercewerk in writing signed by an authorized representative of Commercewerk’s Corporate Communications department. Commercewerk may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites.

e. Notices and Restrictions.

The Site and the Services may contain, include or interface with Commercewerk Content that is subject to and protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws under European and other applicable law and international conventions. Customer shall abide by and maintain all copyright notices, information, and restrictions contained in any Commercewerk Content accessed through the Site and the Services.

7. Confidentiality.

a. Confidential Information.

“Confidential Information” means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of receiving Party; (ii) was properly known to receiving Party; without restriction, prior to disclosure by the disclosing Party; (iii) was properly disclosed to receiving Party, without restriction, by another person without violation of disclosing Party’s rights; or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement (and for Commercewerk to provide the Services) and it will not disclose such information to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder or for Commercewerk to provide the Services or make other disclosures identified in the Privacy Policy. Each Party agrees to exercise due care in protecting the other Party’s Confidential Information from unauthorized use and disclosure. Each Party may also disclose the Confidential Information of the other Party, in whole or in part to its employees, representatives, other personnel, actual or potential investors and subcontractors who have a need to know and are bound to keep such information confidential consistent with the terms of this Section.
In addition, Commercewerk may disclose this Agreement under a comparable non-disclosure agreement in response to a third-party due diligence request supporting a financing or non-ordinary course of business corporate transaction. Either Party may disclose the Confidential Information of the other as required by applicable law or regulation, legal process or court order; provided that, subject to applicable law and regulations, it promptly notifies the other Party of such required disclosure in order to allow the other Party to seek a protective order or other appropriate remedy.

8. Indemnification.

a. Customer Indemnification.

Customer shall on demand, defend, indemnify, keep indemnified and hold harmless, Commercewerk, its Affiliates and Subcontractors, and its and their officers, directors, employees, agents and personnel (each, a “Commercewerk Indemnified Party”) against any and all losses, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) to the extent arising in respect of any claim or action brought against a Commercewerk Indemnified Party by or on behalf of a government or regulatory authority or any other third party, arising from or relating to: (i) unauthorized or prohibited use of the Services, including violations of the AUP or applicable law or regulation, by Customer, its Affiliates or its or their End Users, employees, other personnel, agents or subcontractors; (ii) Application Content; (iii) claims by End Users to the extent they purport to extend a Commercewerk Indemnified Party’s liability or obligations beyond the limitations and disclaimers set forth in this Agreement; or (iv) gross negligence or willful misconduct of Customer, its Affiliates or its or their employees, agents or subcontractors.

b. Procedure.

In the event of a claim arising to which the indemnity under Section 8a applies: (i) Commercewerk shall notify Customer promptly after Commercewerk learns of the existence of the claim and provide Customer with such information and assistance as Customer reasonably requests in responding to the claim; (ii) Customer shall have primary control of the defense and settlement of the claim, provided that Commercewerk shall have the right to participate in the defense and settlement negotiations at its own expense; (iii) Customer shall not agree to any settlement or compromise that includes any admission or acceptance of liability or wrongdoing by Commercewerk without the Commercewerk’s prior written consent; and (iv) to the extent that Customer fails to take up the defense and settlement of a claim within a reasonable timeframe after being notified of the same, Commercewerk may do so at Customer’s expense.

9. Warranties and Disclaimers.

a. Representations.

Each Party represents and warrants to the other that it: (i) has the corporate power and authority to enter into this Agreement and perform its obligations hereunder; and (ii) is authorized to do business and to provide or receive (as applicable) the Services.

b. Standard of Services.

Commercewerk shall supply the Services using reasonable skill and care, in accordance with any timeframes set out in this Agreement or, if none, a reasonable timeframe, and (subject to any changes made in accordance with Section 1b) in accordance with the relevant Service descriptions accessible on the Site.

c. Assumption of Risk.

Commercewerk has no special relationship with, or fiduciary duty to, Customer. Customer acknowledges and agrees that Commercewerk has no control over and has no duty to take any action regarding and shall have no liability for acts, faults or omissions of any third party telecommunications systems, networks or operators (including, without limitation, suspension or termination of Commercewerk’s connections, or faults in or failures of their apparatus or network), in the jurisdictions in which it operates.

d. DISCLAIMER.

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH ABOVE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND THE SERVICES AND Commercewerk CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF QUALITY (E.G., AS TO LATENCY AND THROUGHPUT) AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE. Commercewerk, AND Commercewerks’S SUPPLIERS, PARTNERS AND LICENSORS, AND EACH OF Commercewerk's AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OTHER PERSONNEL AND AGENTS, DO NOT WARRANT (AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES) THAT: (I) THE SITE OR THE SERVICES (OR ANY MOBILE OPERATORS) WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY CONTENT OR SOFTWARE AVAILABLE ON OR THROUGH THE SITE OR THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (III) THE CONTENT ON THE SITES OR SERVICES (OR ANY THIRD PARTY SITES OR SERVICES LINKED THERETO) IS ACCURATE, ERROR-FREE, APPROPRIATE, COMPLIANT, OR COMPLETE, OR (V) THE RESULTS OF USING THE SITE OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. Commercewerk DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT OF, COMMUNICATION BY, OR PRODUCT OR SERVICE ADVERTISED OR OFFERED BY, A THIRD PARTY THROUGH THE SITE OR THE SERVICES, AND EXCEPT AS REQUIRED BY APPLCIABLE LAW OR PERMITTED BY THIS AGREEMENT Commercewerk WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND THIRD PARTIES.

e. Reservation of Rights.

Commercewerk reserves the right, but is not obligated, to monitor and audit Customer’s use of the Services for any reason or no reason, without notice, to ensure Customer’s compliance with this Agreement. Commercewerk reserves the right, but is not obligated to, in each case only in accordance with applicable law and regulations, reject, refuse to transmit or post, block, or remove any including Application Content, or to restrict, suspend or terminate Customer’s access to all or any part of the Site or the Services at any time, if Customer or any End User has violated this Agreement, applicable law or regulation. If Commercewerk suspends, removes or otherwise restricts Application Content due to the foregoing reasons, Customer, End Users and any other affected individuals or entities may contact Commercewerk regarding that decision at support@commercewerk.de. Commercewerk reserves the right to investigate any actual, potential or alleged breach of this Agreement and any actual, potential or alleged misuse of the Site or the Services, including to flag or request removal or non-transmission of potentially illegal or prohibited content in response to notifications received from competent authorities or End Users. Commercewerk reserves the right to notify competent authorities or appropriate third parties (as permitted by applicable law and regulations) of any activity or content that violates or may violate applicable laws, and to cooperate with such authorities or third parties in any subsequent investigations, including by disclosing details, copies of or access to Application Content and other information relating to Customer and/or End Users as required by applicable law or regulation. Commercewerk also reserves the right to, in each case only in accordance with applicable law and regulations, access, read, preserve, and disclose any information that Commercewerk reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental or agency request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of Commercewerk, its customers, its customers’ end users, and/or the public. Customer agrees to provide Commercewerk with any information Commercewerk reasonably requests to investigate and resolve problems relating to Customer’s Account.

f. No Emergency Services.

Commercewerk’s Services are not intended for and may not be used (i) in connection with emergency, public safety or similar services (“Emergency Services”); or (ii) as a replacement for any primary phone services (e.g., landline or mobile phones) used to contact Emergency Services. Customer acknowledges that Commercewerk and Commercewerk’s suppliers have no responsibility to connect any emergency calls to any Public Safety Answering Point.

g. Beta Services.

Certain Services may be designated or offered as a “beta” version (“Beta Version”) of a Service, which may or may not be released as a full commercial service in the future. Customer is not required to use any Beta Version and does so at its sole risk. Except as otherwise indicated under separate terms and conditions that may apply to such Beta Version, Commercewerk shall not charge for such Beta Version, but reserves the right to charge for subsequent versions of the Beta Version, including any potential commercial releases. Customer acknowledges and agrees that the Beta Version may contain, in Commercewerk’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Beta Version. Commercewerk reserves the right not to release later commercial release versions of the Beta Version. Without limiting any disclaimer of warranty or other limitation stated in this Agreement (or any separate terms and conditions that would otherwise be applicable to such Beta Versions), Customer agrees that Beta Versions are not considered by Commercewerk to be suitable for commercial use, and that may contain errors affecting their proper operation. CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER’S USE OF ANY SERVICES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Commercewerk SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER’S USE OF ANY BETA VERSION. The fact and existence of any Beta Version shall be deemed to be Commercewerk Confidential Information under this Agreement. The Support Policy shall not apply to Beta Versions.

h. Deletion of Customer Data.

Except as agreed by Commercewerk and Customer in writing and subject to the terms of the Data Processing Addendum, Commercewerk may periodically delete Customer’s data including any Application Content. Further, data storage is not guaranteed by Commercewerk and Commercewerk shall not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that Customer may incur relating to the loss or deletion of or any damage to, Customer’s data.

10. Suspensions and Terminations.

a. Termination for Convenience.

Customer may terminate its use of the Services any time for any reason, and may close its Account (in which case this Agreement shall automatically terminate) by following the instructions on the Site or by contacting Commercewerk at support@commercewerk.de. Commercewerk may terminate this Agreement as a whole by providing 60 days’ advance notice to Customer.

b. Suspension of Services; Termination for Cause.

Commercewerk may suspend (for a reasonable period of time) Customer’s right to use and to permit End Users to use the Services or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use and to permit End Users to use the Services), for cause immediately upon the provision of notice to Customer: (i) if Customer is in breach of this Agreement and such breach is either uncurable or Customer has failed to cure such breach within 30 days after notice thereof; (ii) if Customer or any End User has violated or Commercewerk has reason to believe Customer or any End User has violated or has encouraged others to violate any provision of the AUP; (iii) if there is a third-party intellectual property claim against Commercewerk in relation to any Services; (iv) in order to prevent damages if Commercewerk reasonably believes that Customer’s use of the Service could (A) pose a security risk to the Service, (B) adversely impact Commercewerk’s or its third-party provider’s systems or the Services, or (C) be fraudulent; (iv) Commercewerk’s access to a third-party provider’s software or other technology that is required to support the Service is suspended and/or terminated; (v) upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer’s assets, failure to continue Customer’s business in the ordinary course, assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding; (vi) if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to Commercewerk is invalid or charges are refused for such payment mechanism (and Customer does not resolve such issue within 15 days’ of notice from Commercewerk); or (vii) if Commercewerk is instructed or requested to do so by a government or regulatory authority or is otherwise required to do so in order to comply with applicable law or regulation.

c. Effect of Suspension.

Upon Commercewerk’s suspension of Customer’s use of or access to any Services, in whole or in part, for any reason: (i) applicable charges and fees will continue to accrue for any Services that are still in use by Customer, notwithstanding the suspension; (ii) Customer remains liable for all applicable fees, charges and any other obligations Customer has (or Customer’s Account has) incurred through the date of suspension with respect to the Services; and (iii) all of Customer’s rights with respect to the Services will be terminated during the period of the suspension.

d. Effect of Termination and Survival.

Upon termination of this Agreement, for any reason: (i) Customer remains liable for all applicable fees, charges and any other obligations accrued and owed by Customer through the effective date of such termination; (ii) except as expressly set forth herein, all of Customer’s rights and licenses under this Agreement will immediately terminate and Customer shall cease (and shall procure that all End Users cease) using the Services; and (iii) any balance on Customer’s Account remaining after termination of this Agreement will be repaid to Customer within 20 business days following termination. All amounts accrued or owed to Commercewerk in connection with this Agreement, and Sections 3; 5-8; 9d-e; 10d; and 11-15, shall survive any termination of this Agreement (in addition to any other provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement). Following any suspension or termination of this Agreement for convenience under Section 10a, Customer may request any post-termination assistance that Commercewerk may elect to make generally available to its customers from time to time with respect to the Services (such as data retrieval arrangements), subject to and conditioned upon Customer’s advance payment of applicable charges and fees and acceptance of all terms and conditions that Commercewerk specifies in writing with respect thereto. For the avoidance of doubt, references to termination of this Agreement (or similar) as referred to in this Section 10 shall be deemed to mean this Agreement in so far as it relates to the Services, and any use of the Site by or on behalf of Customer following such termination shall continue to be subject to the relevant terms of this Agreement.

11. Limitation of Liability.

a. LIABILITY NOT EXCLUDED.

NOTHING IN THIS AGREEMENT SHALL LIMIT THE LIABILITY OF EITHER PARTY FOR: (I) FRAUD (INCLUDING FRAUDULENT MISREPRESENTATION); (II) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR (III) ANY OTHER LIABILITY TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.

b. GENERAL EXCLUSIONS

SUBJECT TO SECTION 11a AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Commercewerk OR Commercewerk's AFFILIATES, PARTNERS, SUPPLIERS, LICENSORS, OR CONTENT PROVIDERS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PERSONNEL (TOGETHER, THE “ Commercewerk PERSONS”), BE LIABLE UNDER OR IN RELATION TO THIS AGREEMENT WHETHER AS A RESULT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (II) LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS; (III) ANY SERVICE CREDITS, OUTAGE PENALTIES OR OTHER SIMILAR PAYMENTS PAYABLE BY CUSTOMER TO ANY OTHER PARTY; (IV) ANY LOSS OF OR DAMAGE OR DESTRUCTION TO DATA; (V) ANY INTERRUPTION OF BUSINESS; (VI) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES; OR (V) USE OF OR INABILITY TO USE THE SERVICES IN CONNECTION WITH EMERGENCY SERVICES.

c. GENERAL LIAIBLITY CAP.

SUBJECT TO SECTION 11a AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL, AGGREGATE LIABILITY OF THE Commercewerk PERSONS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF 50,000 EUR OR THE AMOUNT OF FEES ACTUALLY PAID TO Commercewerk IN THE 6 MONTHS PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM UNDER THIS AGREEMENT.

12. Governing Law and Venue.

This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction of the contracting entity identified in Schedule 1, without reference to its principles of conflicts of law rules. Without limiting the preceding language, Customer agrees to submit, for purposes of this Agreement, to the jurisdiction and venue of the contracting entity identified in Schedule 1. CUSTOMER AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE OR SERVICES OR Commercewerk MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

13. Arbitration and Dispute Resolution.

a. Management Resolution.

In the event either Party has a dispute or claim against the other Party, the disputing Party shall provide notice to the other Party. The Parties agree to escalate disputes to their respective management, who will use reasonable endeavors to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both Parties within 30 days of the receipt of notice. Except as set out in Section 13e, neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.

b. Binding Arbitration.

If negotiations fail to resolve the dispute within 30 days, and/or small claims court is not a valid option due to the size or nature of the claim, then except as set out in Section 13e all disputed claims must be resolved by binding arbitration before a single arbitrator, in the English language. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable law. The initiation of an arbitration dispute shall not otherwise prevent Commercewerk or Customer from terminating Services in accordance with this Agreement.

c. Location and Procedure.

A Party who intends to seek arbitration must first send to the other Party a notice of dispute, which must describe the nature and basis of the dispute and set forth the specific relief sought. The location and forum of arbitration will be as identified in Schedule 1 and in accordance with the applicable arbitration rules and procedures, and this dispute resolution provision will be governed by the applicable arbitration act in that jurisdiction and not by any state or national law concerning arbitration. The amount of any settlement offer made by Customer or Commercewerk shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Commercewerk is entitled. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. The prevailing Party in any action or proceeding to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.

d. Jury Trial and Class Action Waiver.

Each Party waives its right to a trial by jury for claims subject to arbitration hereunder. The arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CUSTOMER MAY BRING CLAIMS AGAINST Commercewerk ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT. The arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative or class proceeding.

e. Equitable Relief.

Notwithstanding the foregoing, each Party shall be entitled to enforce its intellectual property rights and seek equitable relief in any court of competent jurisdiction at any time.