General Terms and Conditions (GTC) of Memberr GmbH

Last updated: June 25, 2024

These General Terms and Conditions (GTC) govern the business relationship between Memberr GmbH ("Memberr") and commercial customers who use the Software-as-a-Service offerings of Memberr GmbH. These GTC apply exclusively to entrepreneurs as defined in Section 14 of the German Civil Code (BGB) (i.e., B2B customers) and do not apply to consumers.

These GTC apply to all services provided by Memberr GmbH in connection with the provision of the Store Credit solution for e-commerce shops, including the issuance and management of store credits, the processing of refunds in the form of store credits, and the integration of loyalty programs. Conflicting or deviating terms and conditions of the customer are not recognized unless Memberr expressly agrees to their validity in writing.

1. Scope of Application

These GTC govern all contractual relationships between Memberr and the customer regarding the use of the cloud-based SaaS solution. They apply to all future and current contracts concluded for the use of the Store Credit solution.

2. Contracting Parties

The contracting parties to this agreement are Memberr GmbH, based in Bielefeld, Germany, represented by its management (hereinafter "Memberr"), and the respective e-commerce company or entrepreneur who uses Memberr's services (hereinafter "Customer"). The Customer affirms that they are an entrepreneur as defined in Section 14 of the German Civil Code and that they use Memberr's services exclusively for commercial purposes.

3. Subject of the Contract

The subject of this contract is the provision of a cloud-based software solution by Memberr for managing store credits and integrating loyalty programs in the Customer's online shops. For this purpose, Memberr provides the Customer with a web-based platform (SaaS) and, if applicable, interfaces (APIs) through which the Customer can issue and manage store credits to end customers, process refunds in the form of store credits, and integrate a loyalty program into their e-commerce shop.

The Customer receives the non-exclusive right, limited to the duration of the contract, to use the Memberr software in accordance with this contract for their own business purposes. The software itself is not transferred; access is exclusively online via the platform operated by Memberr.

Memberr provides only the technical infrastructure for carrying out the aforementioned processes. The substantive design of the store credits and loyalty programs—in particular, the conditions for their redemption vis-à-vis the Customer's end customers and compliance with legal requirements—is the sole responsibility of the Customer.

4. Contract Formation

The contract between Memberr and the Customer is formed either through a written contract or through an electronic ordering process (online registration). When using the online registration process on Memberr's website, the Customer submits a binding offer to conclude a contract by completing the registration and confirming acknowledgment of these GTC.

Memberr may accept this offer through express confirmation (e.g., by email) or by activating access to the SaaS platform. The Customer is obligated to provide truthful and complete information about their company and its representatives during registration or ordering.

5. Services and Availability

Memberr provides the contractually agreed SaaS services to the Customer via the Internet but assumes no guarantee or warranty whatsoever for their functionality, availability, or suitability for particular purposes. This includes:

- The technical provision of the software (including updates and bug fixes at Memberr's sole discretion).
- The storage of data entered or generated by the Customer in the course of using the platform on Memberr's servers, without any guarantee regarding data security.

Availability and Outages: Memberr assumes no guarantee whatsoever for the availability of the platform. Outages may occur at any time and without prior notice. Maintenance work may be carried out at any time and does not need to be announced.

Express Disclaimer of Liability: Any outages of the platform—regardless of whether these are caused by maintenance work, security updates, force majeure, or other events—do not entitle the Customer to any claims for damages or other claims under any circumstances. Memberr assumes no liability whatsoever for the unavailability or interruption of services and is not obligated to compensate for any resulting damages or losses.

6. Prices and Payment Terms

The compensation for services provided by Memberr consists of a subscription fee (e.g., monthly or annually) and, if applicable, transaction-based fees, depending on the service package selected by the Customer. The specific prices and billing model are derived from the individual offer or Memberr's current price list. All prices are subject to the applicable statutory value-added tax.

The billing of ongoing subscription fees typically occurs monthly in advance, while variable or transaction-dependent fees are usually billed monthly in arrears. Invoices are made available to the Customer electronically (e.g., by email).

Invoice amounts are due within 14 days of the invoice date. In case of payment default, Memberr is entitled to charge statutory interest on arrears and, after prior notice, to temporarily suspend services or terminate the contract for cause.

Memberr reserves the right to adjust prices at any time at its sole discretion. Price changes will be announced at least 4 weeks before they take effect. If the Customer does not object in a timely manner, the changed prices are deemed accepted.

7. Term and Termination

Unless otherwise agreed, the contract is concluded for an indefinite period. If a minimum contract term has been agreed upon, ordinary termination is excluded during this period. After the expiry of the minimum term, the contract may be terminated by either party with 30 days' notice to the end of the month.

Terminations must be in text or written form. The right to extraordinary termination for good cause remains unaffected. Upon termination, the Customer's access authorizations will be blocked at the end of the contract. The Customer is responsible for backing up their data in a timely manner; Memberr assumes no responsibility for data loss of any kind.

8. Customer Obligations

The Customer undertakes to use Memberr's SaaS services properly and in accordance with the contract. This includes in particular:

Access Data: The Customer must keep their access data confidential and protect it from unauthorized access.
Usage: The platform may be used exclusively within the contractually intended framework and for internal business purposes. Abusive or illegal use is prohibited.
Cooperation: The Customer provides all necessary information and access (e.g., to their shop system) required for the provision of services.
Data Responsibility: All data entered into or uploaded to the platform must be free from third-party rights and must not contain malware.
Technical Requirements: The Customer ensures the required technical equipment (internet connection, current web browser, etc.).
Complete Responsibility: The Customer bears sole and complete responsibility for all activities carried out under their account, as well as for all legal consequences of using the services.

9. Comprehensive Disclaimer of Liability

Memberr assumes no liability whatsoever for damages of any kind that might arise for the Customer or third parties in connection with the use of the SaaS services—regardless of whether these are asserted directly or indirectly, contractually, in tort, or on any other legal basis. This comprehensive disclaimer of liability expressly includes, but is not limited to:

Direct and indirect damages
Lost profits
Data loss or corruption
Business interruptions
All consequential damages of any kind
Damages due to software errors, security vulnerabilities, or hacker attacks
Damages due to improper operation or misuse of the platform
Data protection violations
Damages caused by platform downtime
Damages due to incorrect advice or inadequate documentation

The Customer uses the services at their own risk and peril. The Customer fully indemnifies Memberr from all third-party claims and from all of their own claims that might arise in connection with the use of the services.

Any liability claims against Memberr are excluded without exception, to the extent legally permissible. Even in cases of gross negligence or intent, Memberr assumes no liability, to the extent that such exclusion is legally possible.

10. Final Provisions

The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for all disputes arising from or in connection with this contract is, to the extent legally permissible, the registered office of Memberr (Bielefeld, Germany). Memberr reserves the right to assert claims at the general place of jurisdiction of the Customer as well.

The Customer may only offset with undisputed or legally established claims. An assignment of rights from this contract requires the written consent of Memberr.

Changes or additions to this contract require text or written form. Should a provision of these GTC be invalid, the remaining provisions shall remain unaffected. In place of an invalid provision, a legally permissible provision shall apply that comes closest to the economic purpose of the invalid provision.

Absolute Waiver of Liability: By using Memberr's services, the Customer irrevocably and unconditionally waives any and all rights to make claims against Memberr for any reason whatsoever. The Customer explicitly acknowledges and agrees that Memberr bears absolutely no liability whatsoever under any circumstances, including but not limited to cases of deliberate acts, gross negligence, breach of contract, violations of applicable law, or any other act or omission. This complete waiver of liability shall remain in effect to the maximum extent permitted by law even if Memberr has been expressly informed of potential damages or if such damages were reasonably foreseeable.

Comprehensive Indemnification: The Customer shall fully indemnify, defend, and hold harmless Memberr, its officers, directors, employees, agents, and affiliates from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to the Customer's use of Memberr's services, regardless of the legal theory upon which such claims are based.

Severability of Liability Provisions: If any portion of the liability exclusions or limitations contained in these GTC is found to be invalid or unenforceable under applicable law, it shall be severed and the remaining provisions shall be enforced to the maximum extent possible. In such case, any liability shall be limited to the absolute minimum required by applicable law.