USER AGREEMENT

delta42 legal
1 Conclusion of Contract, Parties
This Contract is concluded between PTS Group AG, Cuxhavener Str. 10a, 28217 Bremen, Germany (hereinafter referred to as "PTS") and - subject to the the exclusion of contracts with consumers according to sec. 2 - the person who concludes a registration via a website concerning the DELTA42 service, currently https://delta42.io/, and confirms this Contract. If the person does not act in his/her own name but on behalf of a company or other third Party, the Contract shall be concluded with the represented person. The Contracting Party is hereinafter uniformly referred to as the "Customer". PTS and the Customer shall hereinafter each also be referred to as a "Party" and jointly as the "Parties".
2 Exclusion of Contracts with Consumers
2.1 The services under this Contract are only directed at entrepreneurs in the sense of sec. 14 BGB (German Civil Code) (natural or legal persons or partnerships with legal capacity, who act in exercise of their commercial or independent professional activity when concluding a legal transaction). PTS shall not conclude contracts with consumers within the meaning of sec. 13 BGB (German Civil Code) (natural persons who conclude a legal transaction for purposes that can predominantly be attributed neither to their commercial nor their self-employed professional activity).
2.2 The Customer shall truthfully confirm that he is acting as or on behalf of an entrepreneur within the meaning of § 14 BGB (German Civil Code) prior to conclusion of the respective order transaction. The truthful statement is a mandatory requirement for an effective conclusion of this Contract.
2.3 If it turns out in retrospect that the information provided by the Customer was incorrect, any contract concluded shall be deemed not concluded from the outset and PTS shall be entitled to claim not only the actual expenses for reversal but also, if applicable, appropriate compensation for use according to sec. 346 BGB (German Civil Code) as well as compensation for further damages that may have been incurred due to the incorrect information.
3 Subject Matter
3.1 The subject matter of this Contract is the offer of a B2B service especially for dealers/shop operators on online marketplaces, hereinafter referred to as "DELTA42". With the help of a "dashboard", these can quickly and comprehensively analyze performance indicators such as sales, marketing activities, customer enquiries and other information and react accordingly quickly to changing customer requirements.
3.2 For this purpose, the system behind DELTA42 retrieves on behalf of the Customer the metadata of the Customer's online shop from the respective marketplace/website operators (e.g. Amazon and Shopify) as well as other relevant information from Google, Facebook and Zendesk (Marketing and Support), among others. For this purpose, interfaces provided by the respective marketplace/website operator are used. PTS is authorized by the Customer to access these interfaces in the DELTA42 backend using the procedures required by the respective marketplace/website operator. Only metadata, i.e. no personal data, is collected via these interfaces.
3.3 The concrete scope of services depends on the service model selected at registration or at a later date. The Customer can choose between the "Light", "Basic", "Premium", "Enterprise" and "Agency" packages (hereinafter each a "Package"). The packages differ, among other things, in the number of channels that can be connected and the maximum number of orders that the Customer can process each month via the channels to be connected. A detailed overview of the range of services of the respective package can be accessed via https://delta42.io/preise/. The "Agency" package is aimed at service providers who act on behalf of one or more shop operators to optimize and manage their online shops. The service provider is granted the right by its end customers to use the functionality of DELTA42, as described in clause 3.3, to provide its own services for those end customers.
3.4 Currently, the Customer is offered data reception with regard to the following market places/websites:
  • Online marketplaces
    • Amazon
    • Shopify
  • Partner for advertisements
    • Google Analytics
    • Facebook
  • Miscellaneous
    • Zendesk
PTS reserves the right to extend or restrict this offer at its sole discretion. The Customer shall be notified of any limitation of the offer by e-mail with a reasonable lead time (usually at least 14 days before limitation of the offer). If a restriction of the offer puts the Customer at a considerable disadvantage, the Customer shall have a right of termination for cause effective to the time the restriction comes into effect.
3.5 Within the scope of DELTA42, the Customer will be provided with data which PTS has received from the respective market place/website operators and, if necessary, which is aggregated or graphically prepared. PTS will not make any changes to the metadata and accordingly shall not assume any responsibility for the completeness or correctness of the data material. Furthermore, PTS will not analyze the data in terms of content and shall not provide any consulting services with regard to the Customer's company.
4 Software as a Service
4.1 DELTA42 is offered as a so-called "Software as a Service" solution. The software and IT infrastructure required for DELTA42 is operated and hosted by or for PTS, so that there is no need to install and maintain individual applications on the Customer's systems. The use of DELTA42 is therefore offered to the Customer as a service. In order to use this service, the Customer only needs an Internet-capable terminal device, via whose browser he can then access DELTA42.
4.2 As Contractual duty, PTS provides for the proper functioning of the website and the servers through which the Customer can access DELTA42. This means that neither individual software solutions nor the interfaces on the basis of which DELTA42 operates shall be provided to the Customer and that their individual design, scope of functions and offer shall accordingly not be part of the Contract, i.e. the Customer shall not be entitled to any such claims with regard to these individual components and their design.
5 Availability of DELTA42, Reduction for Downtime
5.1 In principle, the Customer may use DELTA42 on any day of the week and irrespective of the time of day.
5.2 However, during the regular maintenance periods, which normally take place daily between 23:00 and 00:00, DELTA42 will not be available. As a result of unforeseeable exceptional situations, maintenance work may become necessary outside the maintenance times or beyond the scheduled duration.
5.3 PTS assures an availability of the DELTA42 solution of 98% of the service time per calendar month. “Service Time" means Monday to Friday from 8:00 to 18:00. For a simplified calculation of the availability, this shall apply on 20 working days per calendar month, resulting in a monthly service time of 12,000 minutes (20 days x 10 hours x 60 min.), resulting in an availability of 11,760 minutes per month (the "Assured Availability").
5.4 "Downtime" shall mean the time within the Service Time during which the DELTA42 servers are not operational or responsive to user input. In the event of a failure, the level of corresponding functionality is monitored by checking the accessibility of the servers and measuring read and write processes on the servers. Failures that are not the responsibility of PTS and that could not have been prevented even if PTS had exercised due diligence in accordance with the Contract, e.g. failures of the data line, are not taken into account when assessing availability. Likewise, any maintenance work that may become necessary during the Service Time shall not be considered.
5.5 If the Downtime in one calendar month amounts to more than 2% of the Service Time (i.e. more than 240 minutes), the remuneration to be paid for the respective calendar month is reduced and the Customer is only obliged to pay the proportion of the remuneration corresponding to the Actual Availability. The "Actual Availability" is calculated as follows:Formel
Given a downtime of 850 minutes, this would result in the following example:Formel
In this example, the Customer would only be obliged to pay 94,81 % of the monthly remuneration.
5.6 The reduction according to sec. 5.5 requires that the Customer immediately notifies PTS of any Downtimes noticed by him. A reduction shall not apply to Downtimes which the Customer has not notified PTS of or which have not affected the use of DELTA42 by the Customer. In case of doubt, the Customer shall be obliged to provide evidence of any impairment.
6 Support
PTS offers the Customer a graduated support service, which is provided by telephone or via the internet (chat support). The scope of the support available for the respective option of use is based on the Packages according to sec. 3.3, please see the price list at https://delta42.io/preise/ for details. This support service is of a technical nature only and relates exclusively to the availability of DELTA42. As a rule, the support service will respond to any queries arising within 72 hours. However, if a response is not made within this time window, the Customer's claims shall be governed exclusively by sec. 5.3 to 5.6.
7 Customer’s Obligations
7.1 The Customer is aware that proper functioning of DELTA42 depends on access to the metadata of his shops. Accordingly, he shall be obliged to take all necessary steps and make all declarations required for retrieving the metadata. The Customer shall notify PTS immediately of any changes of his access data or other circumstances which may prevent retrieval of the metadata.
7.2 The Customer shall be solely responsible for ensuring that the terminal on which he wishes to use DELTA42 is equipped with the latest version of a common Internet browser and that it has a sufficient Internet connection.
7.3 Security risks on the part of the Customer shall be actively minimized. In particular, his local systems and his access to DELTA42 shall be protected against unauthorized access by third Parties, inter alia, by the Customer keeping the access data to DELTA42 confidential, keeping the user name and password separate at all times and using a sufficiently secure password for the access.
7.4 Subject to mandatory legal regulations or other Contractual provisions, the Customer is not permitted,
7.4.1 to copy, download, modify, reproduce, create derivative works from, republish, disclose or otherwise publicly reproduce the software behind DELTA42 in whole or in part in any form or on any medium or by any means;
7.4.2 to decompile, disassemble, reverse engineer or otherwise reduce DELTA42 or the software behind DELTA42 in whole or in part to a form that is perceptible to humans;
7.4.3 to use DELTA42 to provide services to third Parties or to sublicense, sell, rent, lease, assign or otherwise transfer, distribute or otherwise commercially exploit DELTA42 or the software behind DELTA42, or otherwise make DELTA42 or the software behind DELTA42 available to third Parties free of charge or for a consideration.
7.5 Sec. 7.4 applies to Customers who have booked the "Agency" Package, with the proviso that they are permitted all actions necessary for the proper provision of DELTA42 services to their end customers.
8 Free Trial Period
8.1 The Customer is given the opportunity to register for a one-off 14-day trial period free of charge. During this trial period, the functions of DELTA42 shall be fully available to the Customer within the scope of the "Premium" Package. With the exception of sec. 5, 9 and 10, all provisions of this Contract shall also apply to the trial period.
8.2 After expiry of the 14-day test period, the Customer's account will be blocked for further use of DELTA42, but the Customer will be given the opportunity to make a registration for which a fee is charged, after which the provisions of this Contract shall apply without restriction.
8.3 PTS shall be entitled to block the test access at any time for objective reasons without any claims of the Customer arising from this.
9 Remuneration
9.1 The remuneration to be paid by the Customer for the use of DELTA42 shall be based on the price table applicable at the time of the conclusion of the Contract (available at https://delta42.io/preise/), which the Customer was able to inspect prior to the conclusion of the Contract and which shall become part of the Contract.
9.2 PTS reserves the right to adjust the prices in the table and thus the Contractual remuneration at its reasonable discretion in line with the development of the costs that are decisive for the price calculation. A price increase shall be considered and a price reduction shall be made if the costs for the procurement of hardware and software as well as energy, the use of communication networks or labour costs increase or decrease or if other changes in the economic or legal framework conditions lead to a changed cost situation. Increases in one type of cost, e.g. wage costs, may only be used for a price increase to the extent that there is no compensation for any declining costs in other areas, such as the costs of hardware and software. In the event of cost reductions, e.g. hardware costs, prices are to be reduced to the extent that these cost reductions are not fully or partially offset by increases in other areas. In exercising its reasonable discretion, PTS shall take into account that cost reductions in question shall have the same effect on prices as cost increases. PTS shall inform the Customer about changes in the price list in text form at least six weeks before the changes come into effect. If the Customer does not agree with the changes, he may object to the changes within a period of 14 days at the time of the intended entry into force of the changes or amendments. The objection must be in text form. If the Customer does not object, the changes or additions to the Contractual terms and conditions shall be deemed to have been approved by him.
10 Payment Services
10.1 The payment processing is carried out by the payment service provider Stripe, Inc. 510 Townsend Street, San Francisco, CA 94103, USA. For this purpose, the Customer is redirected to the website of Stripe during the registration process. The Contractual conditions of Stripe apply to the use of this website and the subsequent processing of the payment, which can be accessed at https://stripe.com/de/ssa.
11 SubContractors
11.1 To make the DELTA42 offer technically possible, PTS currently uses syscore UG (limited liability), Beckerstraße 13, 09120 Chemnitz and Hetzner Online GmbH, Industriestraße 25, 91710 Gunzenhausen.
11.2 PTS shall be entitled to engage further subContractors or other third Party service providers for the provision of DELTA42 at any time.
12 Intellectual Property, Public Announcements
12.1 PTS grants the Customer a simple right of use, limited in time and scope to the duration and purpose of this Contract, to the components of the DELTA42 service which are protected by copyright or otherwise subject to the protection of intellectual property or know-how and which are necessary for proper use by the Customer.
12.2 The Customer grants PTS a simple right of use, limited in time and subject matter to the duration and purpose of this Contract, to use the company name and logo of the Customer in connection with advertising for DELTA42. PTS shall inform the Customer in due time about an intended use of the company name or logo. The Customer may object to such use if such use would lead to unreasonable disadvantages for the company or if such disadvantages seem to be predominantly probable.
12.3 All intellectual property and all rights of exploitation in relation to the same shall remain with the respective Party. Unless otherwise provided in this Contract, the Parties shall not be granted any rights of use or similar rights.
13 Liability, Warranty
13.1 PTS shall be liable for damages of any kind - if all other statutory conditions for claims are met - only in case of intent and gross negligence.
13.2 PTS shall be liable for simple negligence only in case of violation of an obligation the fulfilment of which is essential for proper performance of the Contract and on the observance of which the Customer may regularly rely (Kardinalpflicht).
13.3 Any further liability for damages of any kind, irrespective of the basis of the claim, including liability for culpa in contrahendo, shall be excluded.
13.4 If PTS is liable for negligent behavior according to sec. 13.2, liability shall be limited to the damage that PTS typically had to expect according to the circumstances known at the time of conclusion of the Contract.
13.5 The limitations of liability set forth in sec. 13.1 to sec. 13.4 shall not apply if PTS has assumed a guarantee, in case of fraudulent intent, for damages that have to be compensated under the German Product Liability Act (ProdHaftG) as well as for damages to life, body or health.
13.6 Any warranty for the services provided under this Contract shall be primarily governed by sec. 5 of this Contract. The strict liability for initial defects according to sec. 536a para. 1 BGB (German Civil Code) is excluded. In all other respects the statutory provisions shall apply.
14 Data Protection
14.1 In connection with the use of DELTA42, PTS processes exclusively the personal data collected during registration and the general use of the delta42.io website. Further information on this subject can be found in the Privacy Policy at https://delta42.io/datenschutzerklaerung/. Only meta data but no personal data will be transmitted via the interfaces of the marketplace/website operators.
14.2 Within the scope of the payment processing upon registration, the Customer is forwarded to the website of a payment service provider in accordance with sec. 10 of this Contract. For the processing of personal data in this context, the provisions of the privacy policy of Stripe, Inc. at https://stripe.com/de/privacy apply additionally.
15 Confidentiality
15.1 The Parties shall treat as confidential all trade secrets and all other economic, legal, tax, operational or technical information of the other Party or its business partners which become known to one Party and which are in any way recognizable as confidential or legally protected, the confidential content of which is obvious or in respect of which a confidentiality interest of the respective Party is otherwise recognizable to the other Party (hereinafter referred to as "Confidential Information"). The receiving Party shall treat the Confidential Information with the same care as it treats its own Confidential Information of the same sensitivity, but at least with the care of a prudent businessman.
15.2 Any use of the Confidential Information is limited to a use in connection with this Agreement. Without the prior consent of the other Party, the disclosure of confidential information to third Parties is not permitted. Consent must be given in writing. No third Parties within the meaning of this paragraph are affiliated companies and consultants who are bound by law to secrecy.
15.3 To the extent required by applicable legal obligations, a Party shall be entitled to disclose Confidential Information. To the extent permitted by law, the Party shall inform the respective other Party prior to the disclosure of Confidential Information.
15.4 The obligation of confidentiality shall not apply to information which
15.4.1 was already known to the public when the Contract was concluded or that subsequently became known to the public without breach of the obligations of confidentiality contained in this Contract;
15.4.2 developed by the recipient independently of this Contract; or
15.4.3 the recipient has received from third Parties or outside this Contract from the other Party without an obligation of confidentiality.
The burden of proving the applicability of the exceptions referred to in this paragraph lies with the Party invoking the exception.
15.5 Upon termination of this Contract, the Parties shall surrender or delete any Confidential Information in their possession to the other Party at the request of that Party. This does not include Confidential Information for which a longer legal obligation to retain records exists or data backups within the scope of normal backup processes.
15.6 The obligation to maintain confidentiality shall apply for the term of this Contract and for an additional period of 3 years after termination of this Contract.
16 Term, Termination
16.1 The term of the Contract shall commence upon registration of the Customer and - subject to Section 16.2 - shall be at least 1 month. It shall be automatically extended by a further month in each case if the Contract is not terminated by either Party with a notice period of 14 days to the end of the calendar month.
16.2 In the event that the free trial period pursuant to sec. 8 is used, the term of the Contract shall be 14 days once and shall end automatically at the end of the period without the Contract being automatically extended.
16.3 The right to terminate the Contract for good cause remains unaffected.
16.4 Any termination must be in text form.
17 Amendments of this Contract
Unless otherwise specifically regulated, PTS shall be entitled to amend or supplement the provisions of this Contract provided that PTS notifies the Customer of such amendments or supplements in writing at least 6 weeks before they become effective. If the Customer does not agree with the changes or amendments, he may object to the changes or amendments by giving 14 days' notice at the time of the intended entry into force of the changes or amendments. The objection must be in text form. If the Customer does not object, the changes or additions shall be deemed to have been approved by him. PTS shall particularly point out the intended significance of the customer's conduct to the customer when notifying the changes or amendments.
18 Final Provisions
18.1 Any General terms and conditions of the Parties shall not apply to this Contract. This shall also apply if such terms and conditions are not expressly rejected.
18.2 The assignment of claims is only permitted with the prior written consent of the other Party. Such consent may not be unreasonably withheld. Sec. 354a HGB (German Commercial Code) remains unaffected.
18.3 A right of retention may only be asserted on the basis of counterclaims arising from the respective Contractual relationship.
18.4 The Parties may only set off claims that have been legally established or are undisputed.
18.5 All amendments, additions and cancellations of Contractual agreements must be made in writing, as must the waiver of this written form requirement, unless this Contract provides for text form.
18.6 Should individual provisions of this Contract be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. In this case, the Parties undertake to replace the invalid provision by a valid provision which comes as close as possible to the economic purpose of the invalid provision. The same applies to any loopholes in this Contract.
18.7 The laws of the Federal Republic of Germany shall apply to this Contract.
18.8 The sole place of jurisdiction for all disputes in connection with this Contract is Bremen, Germany. PTS shall also be entitled to assert claims against the Customer at one of his statutory places of jurisdiction.
18.9 This Contract has originally been created in German and was then translated into the English version. In case of doubt regarding the interpretation of this Contract and its provisions, it is understood that the German version – which is also available on the DELTA42 website – shall be mainly consulted as reference for the interpretation.

February 2020