Svencart Inc General Terms and Conditions for Vendors and Affiliates

Preamble

Svencart Inc (hereinafter referred to as “Svencart”) operates the sales platform www.svencart.com (hereinafter referred to as the “Sales Platform”). Using the ordering the process available there, end customers may purchase software, services or other goods (hereinafter referred to as “Products”) from Svencart. In addition, the Sales Platform also permits the providers of a product or third-party advertisers (hereinafter referred to as “Affiliates”) to promote, review or in any other manner generate awareness (a scheme hereinafter referred to as the “Affiliate Program”) of a product from a provider online (hereinafter referred to as a “Vendor”; Affiliates and Vendors are also referred to below as “Contractual Partners”).

If an end customer decides to purchase a Product, Svencart buys the product offered by a Vendor in its own name and for its own account from the Vendor and sells it to the end customer in its own name and for its own account. The contract for the purchase of the Product is always concluded between the end customer and Svencart on the one hand and Svencart and the Vendor on the other.

There is no direct sale by the Vendor to the end customer.

1. Scope

The following General Terms and Conditions (hereinafter referred to as the “GTC”) govern the legal relationship between Svencart Inc, 1600 Broadway, Suite 1613, Denver, Colorado 80202, USA and the Vendor of goods and services and the resale of such Products to end customers as well as the legal relationship between Svencart and Affiliates who participate in the Affiliate Program. The agreement is solely intended to apply to entrepreneurs within the meaning of section 14 of the German Civil Code (“BGB”), whereby an entrepreneur means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of their trade, business or profession.

These GTC apply likewise to all future business relationships even if they are not again expressly agreed. Contrary confirmations by a Contractual Partner that refer to their own terms and conditions are hereby expressly rejected.

Use of the Svencart services is subject to the terms of this agreement if the Contractual Partner confirms that they have read the provisions of this agreement and consented to its terms by activating a check box during the Svencart registration process. Pursuant to these terms and conditions, Svencart grants the Contractual Partner a non-exclusive, revocable license – which may not be sub-licensed – entitling the Contractual Partner to use the Sales Platform, including the web server, computers, and networks available at www.svencart.com, used to make such website available for purposes set out in these GTC.

2. Affiliate Program

Affiliates may advertise a product and thus promote sales of such product (“Promotion”) as part of the Affiliate Program. For such activities, the Affiliate will receive a commission from Svencart that is specified in each case for the product concerned.

Conducting a Promotion with the objective of receiving a portion of the sales price generated via the Promotion (“Commission”) and the use of Svencart services or another online or offline channel or other medium for such purposes, is subject to the following terms and conditions:

For the products subject to promotion by the Affiliate, no services that exceed the Svencart return or cancellation terms and conditions shall be offered, whether explicitly or implicitly, without the prior written consent of Svencart.

When promoting a Product, the Affiliate shall use any associated trademarks, logos and brand or service names that are either provided by Svencart or directly by the Vendor.

The Affiliate shall refrain from any prohibited or unauthorized use or any other breach, infringement or misappropriation of intellectual property rights of third parties such as patents, copyrights, trademarks or personality rights, name rights, trade secrets or other rights to intellectual or protected property.

The Affiliate shall refrain from the following acts:

Promoting violence;

Promoting sexually offensive contents;

Promoting alcohol, tobacco and medications;

Promoting discrimination based on race, gender, religion, nationality, disability, sexual orientation or age, defamation of any person, including brands and/or brand names or any other contents subject to copyright protection, provided not expressly authorized to do so;

Including any variations or incorrect spellings of third-party brands and/or brand names in any domain names, user names or other descriptions.

Use of the Affiliate Program as a rebate system

Even in cases where the Contractual Partner promotes a Product as an Affiliate, the contract for the purchase of the Product by the end customer is nonetheless concluded between Svencart and the end customer. In such cases, the Affiliate will merely be compensated for their activities as an Affiliate.

Such compensation will be calculated on the basis of the sales price paid by the end customer to Svencart.

3. Product sales

Products are offered for sale via Svencart as described below:

The Vendor creates an account at www.Svencart.com, describes their Product or, in the case of software, uploads it. The Vendor then receives a link from Svencart which the Vendor then integrates on their website next to the corresponding button (“buy now”, “confirm order”, etc.).

In the event that the end customer decides to buy a Product on the Vendor’s website, the end customer clicks on the relevant button (“buy now”, “confirm order”, etc.). The end customer is then directed to the Svencart website, www.Svencart.com. The end customer is informed via the online ordering process on this website that Svencart is the seller of the Product. In order to buy the Product using this ordering process, the end customer must provide personal information, select a form of payment, provide the relevant payment information and then initiate the payment transaction. Svencart permits the end customer to select various forms of payment. The payment recipient and invoicing party is Svencart.

As soon as the end customer has completed the ordering process, Svencart buys the Product offered by a Vendor in its own name and for its own account from the Vendor and sells it to the end customer in its own name and for its own account. As soon as the end customer has purchased the Product from Svencart, Svencart sends the relevant order to the Vendor via email or using an interface to the Vendor’s system. Svencart pays the Vendor the purchase price agreed between the Vendor and Svencart at the time the Product is set up by the Vendor in accordance with the terms of these GTC. The Vendor is obliged to send the Product(s) purchased by the customer immediately in accordance with the shipping method selected by the customer or to provide the Product(s) in accordance with the characteristics and features of the Product(s). In this context, the Vendor acts in relation to the customer as an agent of Svencart.

Products are offered for sale via Svencart subject to the following terms and conditions:

All products registered for sale via Svencart, the offer and sale of these products via Svencart, comply with applicable laws.

Without additional conditions and restrictions, Svencart is authorized by the Vendor to list all products registered by the Vendor for sale via Svencart in a searchable online product marketplace operated by Svencart and to offer them for sale to buyers.

At any time, Svencart may, at its own discretion and without an indication of grounds, without any duty to notify the Vendor and without warranty for contractual penalties or liability claims, delete and remove products from the Svencart marketplace list.

The Vendor must provide a valid email address which Svencart may use to send inquiries that must be answered by the end of the next business day. There must exist a guarantee that Svencart will receive a non-automated response within one business day. The Vendor must report all complaints based on a violation of terms and conditions or legal violations that become known in relation to a Product within two business days. This reporting obligation also applies to the threat of filing complaints.

The Vendor will support Svencart in responding to any complaints by taking any necessary steps and appropriate actions at their own expense.

Upon the sale of a Product or a service, Svencart withholds the tax due in accordance with applicable law (e.g. value added tax and consumption taxes) and remits them to the competent authorities. However, if taxes due with respect to a purchase or sale are not withheld or remitted by Svencart, the Vendor bears this responsibility in accordance with applicable laws and regulations which may vary by country. If applicable, an accountant may determine whether any such obligation applies. The Vendor states that in the event any such obligation applies, they assume the full responsibility for the timely payment of any taxes due.

In the event the Vendor uses the service to inform Affiliates of their products, the Vendor agrees to refrain from providing any false or misleading information about the products, from providing any incentives or promotions for Affiliates unless the Vendor intends to actually fulfil them, to forgo incentives or promotions for Affiliates without an express statement that they are exclusively provided by the Vendor and not by Svencart.

The Vendor shall refrain from making any express or implied statement that the Product is recommended, approved or financially supported by Svencart. The Vendor must inform Svencart fully and without delay with respect to any changes to previously approved sales pages, products, or even thank-you pages.

4. Sending emails

Svencart assumes no warranty or liability for the accuracy, completeness, relevance or timeliness of the contents of emails received by the Contractual Partner in connection with the direct or indirect advertisement, sale of a Product or the use of a Svencart service.

Svencart assumes no responsibility for the contents, in particular for cash prizes, rewards, or other incentives offered by other contractual partners.

Information provided by Contractual Partners by email is used on a voluntary basis and is not controlled by Svencart.

The following actions are prohibited:

Sending emails as well as initiating or instigating the dispatch of emails to persons who have not expressly requested receipt of such communications, for example, when sending unsolicited mass emails, carrying out so-called email blasts or mass emails, or overwhelming public forums, for example, blogs, message boards, private lists, auction websites and Oldnet, Newsnet, and Newsgroup or other services;

Sending emails as well as initiating or instigating the dispatch of emails to persons who have expressly stated they no longer wish to receive communications from the Contractual Partner or the Contractual Partner’s business;

The use of false or misleading information related to the identity of the Contractual Partner or regarding the intentions, contents or the source of a communication or the intentional omission of information regarding the identity, intentions, contents or the source of an email.

The use of incomplete, invalid, misleading, false or manipulated headers in emails;

The use of mouse traps or windows that are in all cases only displayed by opening new windows or that cannot be closed;

The exploitation of documented and undocumented security loopholes on clients or servers;

The omission of clear, valid and identifiable information regarding the sender and subject of the email;

The omission of a functioning reply address (or a functioning hyperlink) in the email address by means of which the recipient may state, for at least 30 days after dispatch, that they do not want any further emails from the Contractual Partner;

Identifying email addresses by automated means and/or sending emails to addresses that were identified in such a manner;

Sending emails from any random address that is used to register multiple emails or online user/customers via script or other automated methods or for the subsequent sending of unsolicited misleading emails;

Sending or forwarding emails from a protected computer or network that is accessed without appropriate permission.

5. Termination / Blocking

At its own discretion, Svencart is entitled to temporarily block the Contractual Partner’s customer account if there are grounds for the assumption that the Contractual Partner is participating in any of the following activities or there is such participation:

Consumer fraud, banking fraud, credit card fraud, sending unwanted advertising (spamming) or other illegal sales activities that violate applicable provisions of law, etc.;

Breach of third-party property rights;

False or misleading statements that violate consumer protection rights or competition law.

Svencart is entitled to terminate the contractual relationship with the Contractual Partner with immediate effect in the case of contractual breaches and may revoke the right to access Svencart services or to otherwise participate in any such services. In the event of such a termination, the Contractual Partner shall immediately cease use of all Svencart services.

6. Contract formation Sale/Invoicing/Disbursement rules

As soon as a purchase agreement is concluded between Svencart and the end customer, Svencart buys the Product offered by the Vendor via Svencart from the Vendor as described in section 3.1.

Svencart pays a purchase price to the Vendor for products sold to the end customer computed as follows: The Vendor specifies a non-binding price recommendation for the net sales price in their account. The purchase price that Svencart pays to the Vendor is computed based on the non-binding price recommendation plus value added tax due for the specific sale to the end customer (“sales price”) less a margin for Svencart pursuant to the then-current Svencart price list or separate agreement with the Vendor in relation to a specific Product.

Svencart will only state the applicable value added tax in the invoice if the Contractual Partner provides Svencart a valid VAT ID number on a timely basis prior to creation of the invoice. There is no right to a subsequent correction of any invoice.

Svencart reserves the right to only make disbursements to Contractual Partners who have provided a valid tax number or VAT ID and a valid telephone number.

The Contractual Partner is obliged to inform Svencart of any changes in address, business name or other comparable changes that relate to information the Contractual Partner required for performance of the contract without delay.

Svencart reserves the right extend disbursement to the Contractual Partner of the purchase price for products Svencart acquires from the Contractual Partner to 30 days if the quantities of a Product sold are low in relation to the Product price. Svencart will inform the Contractual Partner of this without delay. Furthermore, Svencart is entitled to retain an amount from the sales proceeds as security in cases where fewer than 10 sales are made given a Product price of at least € 300.00/unit.

Svencart reserves the right retain disbursements of the purchase price in whole or in part if it suspects any of the actions listed in section 5 as well as in the case of defective products, insufficient product access or insufficient support. Svencart will inform the Contractual Partner of the circumstances resulting in a retention immediately.

Svencart will make purchase price payments to the Vendor above a minimum amount of € 50.00. In the event this minimum amount is not reached, the purchase price will be retained until the minimum amount is reached. In the event that the contractual relationship between Svencart and the Contractual Partner is terminated prior to reaching the minimum amount, a payment will be made even if less than € 50.00.

The amount of the Affiliate’s Commission is based on the Product to be marketed and will be agreed individually. Depending on the individual agreement, Svencart will pay the resulting commissions weekly, bi-weekly or monthly. There is no right to a Commission if an Affiliate is also a Vendor and buys their own Product.

There is also no right to a Commission with a self-purchase, meaning, if the affiliate purchases a product via his own affiliate link.

7. Intellectual property rights

The Contractual Partner is not permitted to use the name, trademarks, service marks or other rights to intellectual property belonging to Svencart in any form that creates the impression of being a part of or approved by Svencart without the express, advance and written consent of Svencart.

Any authorization granted by Svencart may be revoked at any time.

Svencart grants the Contractual Partner limited, revocable authorization to use the name Svencart and Svencart.com exclusively as set out below:

As a watermark;

In a descriptive text on a website as a key word;

As a search term;

As a seeding element for a web search engine;

In metatext or in a hidden text;

As a sub-domain or domain name at a secondary or tertiary level;

To identify products or in connection to advertisement

The Vendor guarantees Svencart that it is the holder of all rights in the Product and that it is the holder of all rights in marketing materials that supplement the Product, for example product descriptions, product information, customer reviews, images and other materials from the Vendor (hereafter referred to as the “Work”).

For the duration of their collaboration, the Vendor grants Svencart a gratuitous, non-exclusive, irrevocable, global right to use and exploit the Work in a comprehensive manner, in particular for the purpose of commercial marketing. This grant expressly includes all forms of offering and promoting the products online, in particular the inclusion in fee-based or free online services, price search engines, blogs and websites.

To the extent the Product on offer or the Work is a digital product, the Vendor further grants Svencart the following additional rights of use:

Authorization to permit the end customer to permanently store the Work;

The right of duplication, making publicly accessible and dissemination, i.e. the right to duplicate, make publicly available or publicly perform the Work with the aid of any available technical capabilities, in particular by means of digital integration into a website operated by Svencart;

The right to make available on demand, i.e. the right to store the Work, to hold it ready for public access, to transfer it to one or more persons who seek access and to analogue or digital electronic databases, electronic data networks, and telecommunications services networks;

The right to public performance;

The right to modify the Work itself or have it modified by third parties subject to preservation of author’s rights, to edit the Work, in particular for purposes of integrating the Work into the Svencart website.

In connection with the performance of this contract, the Vendor grants Svencart the right to use the respective title of the Works as well as names, logos, images, trademarks and business designations both of the Vendor and author of the Work including expressly for promotional purposes.

The Vendor likewise grants Svencart the right to grant sub-licenses in connection with the rights of use granted above.

8. Data protection and non-disclosure obligation

The Contractual Partner may be granted access to confidential information as part of the parties’ collaboration. Without limitation, in this context confidential information includes the identity of other contractual partners, information about buyers, information about physical security and data security, technical data, Svencart marketplace statistics and sales data, know-how, information about business processes, methods and marketing strategies. With the exception of satisfying its obligations within the scope of the parties’ collaboration, the Contractual Partner may not disclose such confidential information to third parties or use such confidential information for their own benefit or the benefit or a third party without the prior express and advance written consent of Svencart.

Such confidential information may not be used to urge Svencart customers to use other services, or to cause them to be so urged, or to advertise for the sale of products that directly or indirectly compete against Svencart or Svencart services including the function of the marketplace.

Confidential information does not include all suggestions, submissions, comments, ideas, concepts, informational materials and feedback sent to Svencart by the Contractual Partner. The Contractual Partner grants Svencart and the licensees a global, permanent, non-exclusive, royalty-free, and transferable license, which may be sub-licensed, to reproduce, present publicly, to distribute, perform, broadcast, edit, modify, alter and publish, as well as for the sale, commercial use, exploitation, and disclosure of such non-confidential information for any purpose and in any form in any currently-known media.

9. Duty to indemnify and hold-harmless

The Contractual Partner is obliged to indemnify and hold Svencart harmless with respect to all compensation for damages and liability, claims, and costs (including the costs of legal investigation and defense as well as reasonable attorney’s fees, trial, and court costs) in the event that claims are asserted against Svencart in connection with the use of Svencart services by the Contractual Partner and/or products or promotions.

The Contractual Partner is obliged to indemnify and hold Svencart harmless with regard to all compensation for damages and liability, claims and costs (including the costs of legal investigation and defense as well as reasonable attorney’s fees, trial and court costs) asserted by a third party against Svencart on the basis of a defect in the Product regardless of whether the claim relates to compensation for direct or incidental or indirect damages, penalties, statutorily-prescribed damages or comparable damages.

In the event that the claims referred to above result from the circumstance that the Contractual Partner performs or participates in the following acts, Svencart is entitled to offset payment obligations owed to the Contractual Partner, if any, against the right to indemnification referred to above and to withhold the relevant payments:

Consumer fraud, banking fraud, credit card fraud, sending unwanted advertising (spamming) or other illegal sales activities that violate applicable provisions of law, etc.;

Breach of third-party property rights;

False or misleading statements that violate consumer protection rights or competition law.

10. Availability and limitation on liability

Svencart makes various information and other services available for use by the Contractual Partner for a limited period. The contents and scope of such services are specified in the relevant contractual agreement and otherwise based on the functions available at any given time on the portal.

Available services may also include third-party services for which Svencart merely facilitates access. Provisions that deviate from or supplement these terms and conditions of use may be applicable to the use of any such services. In all other respects, the right to use available services is limited to the scope of Svencart’s technical and operational capabilities. Svencart endeavors to make the services available without interruption to the greatest extent possible. However, technical malfunctions (e.g. interruptions in power supply, hardware or software errors, technical problems in the data lines) may result in temporary limitations or interruptions.

Liability on the part of Svencart, regardless of legal grounds, is excluded unless it concerns a duty the satisfaction of which renders it possible to perform the contract in the first place and the performance of which the Contractual Partner may normally rely upon (“material contractual obligation”) as well as for damages related to an injury to life, limb or health. In such cases, liability on the part of Svencart is unlimited.

The limitations on liability set out in section 10.3 of these General Terms and Conditions also apply in favor of Svencart’s employees, representatives and agents.

In all other cases, the duty to indemnify is limited to foreseeable damages. To the extent permitted by law, the exclusion of liability for Svencart applies in particular to system failures and the associated lost income or commissions. In the case of liability for a system failure, liability is limited to recovery costs that would have been incurred had proper backups been made by the Contractual Partner.

Similarly, to the extent permitted by law, Svencart is not liable for lost income or commissions in the event of a tracking error.

11. Fees

The margin for a sale is 7,9%+1€. The fee for ELV chargebacks is 12,00 € for Germany. For direct debit payments in Austria it is 15,00 €. For credit card chargebacks 50,00 €.

12. Final provisions

The place of performance for all claims arising under the contractual relationship is Denver, Colorado, USA.

To the extent the Contractual Partner is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a public-sector fund, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Denver, Colorado, USA.

German law shall apply subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

The contractual language is German.

Any modifications to this agreement must be made in writing. This written form requirement applies likewise to any waivers of this written form requirement.