Terms of Use for Merchants

Preamble

Comet Rocks GmbH "Comet" operates an online platform called the Comet Platform. The Comet Platform is a digital self-service solution for Merchants that allows them to set up and manage headless Micro-Stores in order to offer goods to End Customers. 

For this purpose, the Comet Platform provides Merchants with a digital ecosystem with multiple services and functionalities which can be individually selected and customized, including e-commerce related services to process transactions with End Customers. In this context, Comet Rocks acts as a technical intermediary, which operates the Platform on behalf of the Merchants.

Access to and use of the Comet Platform requires that each Merchant enters into a legally binding agreement with Comet Rocks. 

Now therefore, Parties agree as follows:

1.  Scope, Subject-Matter of the Agreement

1. This Agreement governs the rights and obligations of the Parties with respect to Merchant’s access to and use of the Comet Platform, including technical provision of the Comet Platform by Comet Rocks as a digital self service solution. Merchant’s access to and use of the Comet Platform requires entering into this Agreement pursuant to § 3.
2. This Agreement only applies to Merchants which qualify as entrepreneur in the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB); the Agreement does not apply to any consumer in the meaning of Section 13 of the German Civil Code. An entrepreneur in this meaning is any natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of its commercial or self-employed professional activity. In contrast, a consumer is any person that concludes any contract for purposes which can predominantly be attributed neither to his/her commercial nor to his/her independent professional activity.
3. This Agreement shall apply exclusively with respect to Merchant’s access to and use of the Comet Platform. General terms and conditions by the Merchant shall not apply, except where Comet Rocks explicitly confirms so in writing.

2.  Definitions, Interpretation of the Agreement

As used in this Agreement, unless the context otherwise requires, the following capitalized terms shall have the meanings set forth below:

1. “Agreement” means the main body of these Terms of Use for Merchants, any Order Form, the Documentation, the Price-List, the Data processing Agreement and all other exhibits, annexes and attachments agreed by the Parties in accordance with this Agreement.
2. Acceptable Use Policy” / “AUP”: the policy outlining permitted and prohibited uses of the Comet Platform, incorporated by reference into this Agreement, available at www.comet.rocks/aup.
3. “Initial User” means the initial user account to be created by or for Merchant as part of the registration process via the Comet Platform as defined in § 3.
4. “Authorized User” means any employees, representatives, contractors and agents authorized by Merchant to access and use the Comet Platform, including the Initial User.
5. “Comet Rocks” means Comet Rocks GmbH, Cuvrystrasse 1, 10997, Berlin, Germany.
6. “CometPlatform” means the online self-service platform and its services and functionalities operated by Comet Rocks under the term “Comet”, available at the Comet Website.
7. “Comet Website” means the website available at www.comet.rocks, including all sub domains.
8. “Comet API” means the application programming interface of the Comet Platform.
9. “Data Processing Agreement” means the data processing agreement available at the Comet Website governing the processing of personal Merchant Data by Comet Rocks on behalf of Merchant in the course of this Agreement.
10. “Effective Date” means the date this Agreement enters into force in accordance with § 3.
11. “End Customer” means any customer purchasing goods via the Comet Platform from Merchants or Publishers.
12. “Force Majeure” means an unforeseen event, which is beyond the reasonable control of the affected Party to the extent such an event prevents or delays the affected Party from fulfilling its obligations under this Agreement, in particular circumstances like acts of god, war, riot, implementation of sanctions or embargoes, acts of civil or military authorities, inevitable accidents, strikes, terrorism as well as non-reproachable operational disruptions or governmental or judicial orders.
13. “Merchant” means a natural or legal person who offers goods towards End Customers in the course of its business activities; for the purpose of this Agreement, the term also means the natural or legal person which is Party to this Agreement in accordance with the terms and conditions set forth hereunder. 
14. “Merchant Data” means any data transferred to, stored in or processed via the Comet Platform by or on behalf of Merchant and/or its Authorized Users, including any data relating to Merchant’s End Customers.
15. “Merchant Onboarding” means the initial onboarding process Merchant must complete pursuant to § 7in order to get full access to the Comet Platform.
16. “Merchant Systems” means any applications, systems or websites operated by Merchant or a third party vendor on behalf of Merchant for Merchant’s use which are not part of the Comet Platform (e.g. Merchant’s own shop systems).
17. “Order Form” means any order form, whether in electronic, written or text form, executed by both Parties with reference to this Agreement.
18. “Party” means each party to this Agreement, namely Comet Rocks and Merchant (both together the “Parties”).
19. “Platform Services” means any services, applications or functionalities available at the Comet Platform, excluding Third Party Services.
20. “Price List” means the price list available on the Comet Website, which may be amended by Comet Rocks from time to time at its sole discretion.
21. “Micro-Stores” means any headless online stores and microsites individually created by or on behalf of Merchant via the Platform Services.
22. “Technical Documentation” means the documentation with the technical requirements and specifications necessary for Merchant’s access to and use of the Comet Platform available on the Comet Website, which may be amended by Comet Rocks from time to time at its sole discretion.
23. “Third Party Services” means any services, applications or functionalities provided by a third party vendor which are connected to, or integrated with the Comet Platform.

Irrespective of the definitions as set forth in this § 2, the Agreement contains further definitions.

Any headings in the Agreement are for convenience of reference only and shall have no bearing on the contents or interpretation of this Agreement. Definitions in any provision of this Agreement shall be deemed to be set forth for purposes of all other provisions of this Agreement.

A reference to “writing” or “written” in this Agreement also includes electronic form or text form (e.g. email), unless explicitly mentioned otherwise.

Where the words “include(s)”, “including”, “at least” or “in particular” are used in this Agreement, they are deemed to have the words “without limitation” following them.

3.  Entering into the Agreement, Registration

1. Merchant’s access to and use of the Comet Platform is subject to entering into this Agreement by completing the registration process as defined in this § 3.
2. As part of the registration process the Merchant must register an initial account at the Comet Website, the so-called Initial User. For this purpose, the Merchant must enter the required information or authenticate itself via the social sign on login procedures provided on the Comet Website. The Parties may also mutually execute an Order Form with further terms and conditions (e.g. specific usage limitations or pricing terms) as part of the registration process.
3. The registration process is completed once Comet Rocks approves Merchant’s access to the Comet Platform and Merchant receives a corresponding confirmation notification by Comet Rocks. Upon completion of the registration process Merchant enters into this Agreement with Comet Rocks.
4. Any individual or entity executing the aforementioned registration process set forth in this § 3 hereby represents that it has the authority to enter into this Agreement personally and on behalf of the Merchant and to bind Merchant to this Agreement as well as to execute any Order Form on behalf of the Merchant.

4.  Comet Rocks’ Services

Comet Rocks shall provide the following services under the Agreement:

1. Operate the Comet Platform for the Merchant pursuant to § 6 with the availability set forth in § 13;
2. Provide maintenance services for the Comet Platform pursuant to § 14; and
3. Grant a right of use to Merchant for accessing and using the Comet Platform pursuant to § 15.

Comet Rocks may engage subcontractors for the purpose of this Agreement. Use of subcontractors does not discharge Comet Rocks from its performance obligations, liability and other obligations under the Agreement. Comet Rocks ensures that any subcontractor is subject to effective data protection and confidentiality provisions, which may vary from but are in essence equivalent to those in this Agreement.

5.  Merchant’s Obligations

The Merchant shall comply in particular with the following obligations under the Agreement:

1. Comply with the onboarding requirements pursuant to § 7 as well as the requirements regarding the onboarding and administration of Authorized Users pursuant to § 8;
2. Provide the Platform to End Customers in accordance with the requirements set forth in § 9;
3. Use the Platform in accordance with the requirements set forth in § 11;
4. Pay the remuneration in accordance with the provisions set forth in § 20; and
5. Comply with the provisions on confidentiality and data protection set forth in § 23 and § 24.

Merchant shall bear the sole responsibility for providing and maintaining the resources and capacities necessary to access and use the Comet Platform properly, in particular by having the necessary hardware and software in place and maintaining sufficient connection of the Merchant Systems with the internet in order to communicate with the Comet Platform.

Merchant shall support Comet Rocks with the performance of the contractually owed services at its own expense and to the extent this is necessary for the performance of this Agreement. In particular, the Merchant shall provide Comet Rocks with the information and data required for the performance of the Agreement.

Merchant represents and warrants that it has obtained all licenses, permissions and consents necessary to enter into this Agreement and to comply with its obligations under this Agreement, including all licenses, permissions and consents required for transfer and processing of any Merchant Data by Comet Rocks in accordance with this Agreement. Upon request, Merchant will provide Comet Rocks with sufficient information to demonstrate its compliance with the Agreement, in particular any required licenses, permissions and/or consents.

6.  Comet Rocks’ Provision of the Comet Platform to Merchant

1. Comet Rocks provides the Comet Platform to Merchant as a digital self-service solution with multiple Platform Services and Third Party Services which can be individually selected by Merchant. In order to get access to and use the Platform Services and Third Party Services Merchant must comply with the onboarding requirements pursuant to § 7.
2. Based on the Comet Platform’s nature as a digital self-service solution Merchant is responsible for implementing the selected Platform Services and Third Party Services, including the setup, configuration and customizing of Micro-Stores within the available technical parameters. Comet Rocks will assist Merchant with the implementation as part of the technical operation of the Comet Platform if and to the extent agreed by the Parties in accordance with § 16.
3. Access to and use of Third Party Services is at Merchant’s own risk and may be governed by terms and conditions of the respective third party service provider (if any). Comet Rocks is not liable for Merchant’s access to and use of any Third Party Services and does not provide any warranty or representation for any Third Party Services, in particular regarding the availability or functionality of any Third Party Services.
4. Comet Rocks may at its sole discretion (further) develop, test, implement and/or replace existing or new services, applications and functionalities of the Comet Platform (including any Platform Services), provided that the core services, applications and functionalities of the Platform remain in place or are replaced by an equivalent; this applies accordingly to any Third Party Services. Comet Rocks may process any Merchant Data on an aggregated, anonymous basis which cannot be associated with Merchant and/or its End Customers to analyse and improve use of the Comet Platform. This may also include training of existing or new algorithms and data models based on aggregated, anonymous Merchant Data. Merchant hereby acknowledges and agrees to the use of its Merchant Data for such purpose and hereby grants to Comet Rocks a corresponding non-exclusive, irrevocable, non-transferable, non-cancelable, permanent right to use any of its Merchant Data.
5. In the event that Merchants requires any additional applications, functionalities or services to be developed for, integrated into and/or connected with the Comet Platform which go beyond the existing functional scope of the Platform Services and Third Party Services available in the Comet Platform, Comet Rocks may carry out such development, integration and/or connection only if mutually agreed in accordance with § 16. Merchant agrees and acknowledges that it is at Comet Rocks’ sole discretion to determine whether any such additional applications, functionalities or services shall be considered as Platform Services or Third Party Services and to provide them to other Merchants using the Comet Platform.

7.  Merchant’s Onboarding to the Comet Platform

1. Merchant must complete the Merchant Onboarding by complying with the onboarding requirements in order to get access to and use the full functional scope of the Comet Platform. This includes, inter alia, connection of the Merchant Systems with the Comet Platform via the Comet API and/or prebuild connections within the Merchant Systems (e.g. plugins, cartridges, extensions, custom apps). Merchant acknowledges that Comet Rocks gives no warranty or representation that the Comet Platform will be compatible with any Merchant Systems, unless explicitly stated otherwise in the Technical Documentation.
2. Merchant is responsible for complying with the onboarding requirements at its own expenses. The onboarding requirements are set forth in the Technical Documentation. Comet Rocks will assist Merchant with complying with the onboarding requirements, in particular with the implementation and maintenance of any technical requirements or specifications, only if and to extent described in the Technical Documentation (if any); any other assistance is provided by Comet Rocks to Merchant only if and to the extend mutually agreed by the Parties in accordance with § 16. 
3. Merchant must ensure to comply with the onboarding requirements set forth in the Technical Documentation throughout the whole term of the Agreement; otherwise Merchant’s access to and use of the Comet Platform may be limited. Merchant agrees and acknowledges that Comet Rocks is not liable for any disruptions to or restrictions in Merchant’s access to or use of the Comet Platform due Merchant’s lack of compliance with the onboarding requirements set forth in the Technical Documentation. 
4. Comet Rocks may change the Technical Documentation from time to time at its sole discretion. Comet Rocks will notify the Merchant with reasonable advance notice of any planned changes to the onboarding requirements set forth in the Technical Documentation to the extent that such changes may have an impact on Merchant’s access to and use of Comet Platform, unless such prior notification is not feasible (e.g. immediate change of technical requirements due to a security incident); in the latter case Comet Rocks will notify the Merchant within reasonable time afterwards. 

8.  Onboarding and Administration of Authorized User

1. Once the initial onboarding is completed, Merchant‘s access to the Comet Platform is enabled through the Authorized Users, meaning the Initial User account registered as part of the registration process pursuant to § 3 and any other additional Authorized User.
2. Merchant must ensure during the whole term of the Agreement that any data required for the registration of an Authorized User account is complete and correct and that all Authorized Users are sufficiently qualified to use the Comet Platform properly. 
3. Merchant is solely responsible for managing its Authorized Users and their use of the Platform, in particular for granting the correct access authorizations to each Authorized User within the Comet Platform. Comet Rocks shall not be liable for any violations by Authorized Users in connection with the use of the Comet Platform.

9.  Merchant’s Provision of the Comet Platform to End Customers

1. The Comet Platform is provided to Merchant as a whitelabel solution. This means that Merchant is responsible for using any Platform Services and Third Party Services providing them to End Customers in its own name and under its own brand. This applies in particular to provision of any Micro-Stores by Merchant to End Customers. In this context, Merchant shall remain the responsible party (Verantwortlicher) towards the End Customers in terms of any contractual relationship as well as compliance with the applicable laws, in particular data protection and consumer protection laws. 
2. Comet Rocks only acts as a technical intermediary, which operates the Comet Platform on behalf of the Merchant, and is not liable for any acts or omissions of the Merchant, its Authorized Users and/or End Customers. Comet Rocks does not act as seller of any goods towards End Customers and does not enter into any agreement with End Customers. Merchant shall ensure that no Authorized Users and/or End Customer asserts claims against Comet Rocks and Merchant shall indemnify Comet Rocks from any such claims being brought against Comet Rocks.

10.  Payment Services, Processing of Transaction

Comet Rocks provides the Merchant with the option to integrate its own payment processor and initiate payment intent of End Customers via the Comet Platform, provided that the Parties agree on the technical requirements for such integration. In this scenario Comet acts as a headless frontend for the merchant and is not responsible for processing or managing the merchant’s payments.

11.  Usage Requirements

Merchant’s access to and use of the Comet Platform is subject to its compliance with the following usage requirements:

1. Only use the Comet Platform to offer its own products and/or third party products the Merchant is authorized to offer towards End Customers. 
2. Provide correct and complete data required for access to and use of the Comet Platform and keep them up to date at all times during the term of this Agreement. The required data includes in particular data required during the registration process and for creating of accounts for any Authorized Users (including the Initial User account). 
3. Keep the login data to any user account for the Comet Platform safe and keep it secure from unauthorized access by third parties. 
4. Do not use any virus, spyware, malware or other computer code, file or program that may interfere with the operation and/or availability of the Comet Platform.
5. Do not use the Comet Platform to distribute illegal content and/or content that infringes any applicable law and/or otherwise violate the rights of any third parties.
6. Implement appropriate technical and organizational measures to ensure that the Merchant Systems connected with the Comet Platform are properly secured.
7. Do not take any actions via the Comet Platform that are unlawful, threating, abusive, harassing, misleading, defamatory, false, libellous, pornographic, deceptive, fraudulent, tortious, obscene, offensive or racially, ethnically or otherwise discriminatory towards End Customer or other third parties.
8. Do not perform any actions or penetration tests that would reasonably be expected to impair the performance of the Comet Platform, unless agreed otherwise by the Parties in writing.
9. Do not use any manual or automated software or other means to collect any information on the Comet Platform (e.g. web crawlers or scrapers). 
10. Not violate this Agreement and/or applicable law as well as any rights of the End Customers or any other third parties while using the Comet Platform and providing it to End Customers.
11. Merchant shall comply with any security instructions by Comet Rocks within the set time limit or – in the absence of a time limit – within a reasonable time limit (e.g. in the event of a detected or suspected misuse or security breach).
12. In addition to the Usage Requirements defined in this agreement, the Merchant and its Authorized Users must comply at all times with Comet Rocks GmbH’s Acceptable Use Policy (“AUP”), which is incorporated by reference into this Agreement and located at www.comet.rocks/aup. Comet Rocks GmbH may update the AUP from time to time. Any breach of the AUP will be deemed a material breach of these Terms of Use.
13. Merchant must ensure that all Authorized Users comply with the usage requirements in this § 11. In case Merchant and/or any Authorized User violates these usage requirements, the provisions in § 12 apply.
14. Comet Rocks and/or the respective payment processor engaged by Comet Rocks (cf. § 10) may stipulate additional usage requirements, in particular by excluding certain categories of goods or markets from being offered via the Comet Platform. Comet Rocks will refer to such additional usage requirements at the Comet Website.

12.  Restricting Access to and Use of the Comet Platform

Comet Rocks is entitled to suspend the access of Merchant or of specific Authorized Users to the Comet Platform temporarily or permanently subject to the following terms and conditions:

1. Comet Rocks is entitled to suspend the access of specific Authorized Users to the Comet Platform temporarily or permanently after prior notice if such Authorized User fails to comply with the requirements set forth in the Agreement, in particular those set forth in § 11, or violates the rights of third parties and/or any applicable laws.
2. Comet Rocks is also entitled to suspend Merchant's access to the Comet Platform temporarily or permanently after prior notice if Merchant fails to comply with the requirements set forth in the Agreement, in particular those in § 11, or violates the rights of third parties and/or any applicable laws. Comet Rocks may also suspend Merchant’s access if one or multiple Authorized Users violate the requirements set forth in this Agreement, the rights of third parties and/or any applicable laws.

Any suspension of Merchant’s access to the Comet Platform means suspending the access of all Authorized Users to the Comet Platform and ceasing the operation of the Comet Platform for the Merchant so that Comet Platform is not available for any End Customers during the suspension.

Before taking one of the aforementioned measures, Comet Rocks shall give the prior notice to the Merchant about the measure, unless such prior notice is inappropriate (e.g. due to an imminent critical threat to the Comet Platform); in the latter case, Comet Rocks will notify the Merchant without undue delay (unverzüglich) after the measure was taken.

Comet Rocks will reinstate any temporary suspension if Merchant has proven to Comet Rocks in a reasonable and comprehensible way and to Comet Rocks satisfaction that the violation in question has ceased and Merchant has taken appropriate precautions to prevent such violations for the future.

Any temporary or permanent suspension of Merchant’s or Authorized Users’ access shall not be deemed as termination of this Agreement, unless explicitly stated otherwise by Comet Rocks. Any temporary or permanent suspension shall not relief Merchant from any of its payment obligations under this Agreement.

Any further rights, in particular Comet Rocks‘ right to terminating this Agreement for due cause (Kündigungaus wichtigem Grund), remain unaffected.

13.  Availability of the Comet Platform

The Comet Platform is made available to the Merchant with an availability of 99,5% on an annual average, based on twenty-four hours a day, seven days a week.. Comet makes reasonable efforts to provide the Comet Platform without interruption depending on the technical and operational possibilities of Comet Rocks as well as Comet Rocks’ subcontractors. Comet Rocks does not provide any warranty or representation regarding the availability of any Third Party Services; availability of any Third Party Services is at the sole responsibility of the respective third party vendor.

Maintenance services as well as technical or other malfunctions and problems which are outside of Comet Rocks‘ sphere of influence (e.g. acts of Force Majeure, unavailability of third party systems) can lead to a temporary downtime of the Comet Platform. Such failures are not considered to be an impairment of availability. Comet Rocks will endeavour to give notice of any unavailability of any applications, services and functionalities within reasonable time prior to any such unavailability to Merchant. Otherwise, Comet Rocks will notify Merchant within reasonable time afterwards.

It is not a breach of availability if Merchant and/or Authorized Users and/or End Customers are unable to use the Comet Platform due to (a) problems arising from their software, hardware or other technology or equipment, (b) problems with their access to the internet or (c) problems arising from third party systems over which Comet Rocks does not have any influence (e.g. unavailability of public telecommunication networks, unavailability of Merchant Systems).

The Comet Platform shall be deemed to be operating and available if the Comet Platform is up and running in the data centres where its components are hosted in and such data centres are connected to the internet (“Point of Transfer”).

The Parties may agree on specific service levels regarding the availability of the Comet Platform in a separate service level agreement. In this event, such service level agreement shall prevail over the terms and conditions in this § 10.

14.  Maintenance, Support

Comet Rocks shall provide maintenance services for the Comet Platform to ensure availability and functionality of the Comet Platform as agreed hereunder. Performance of the maintenance services is at the sole discretion of Comet Rocks and will regularly be carried out by the installation of software in the form of updates, upgrades, patches, bug fixes ("Program Parts") which modify and/or supplement the Comet Platform.

Comet Rocks shall generally perform the maintenance services outside the following hours: Monday to Friday between 10:00 and 20:00 German time. Comet Rocks may, at its sole discretion, perform maintenance services during the aforementioned hours to the extent necessary to ensure security and use of the Comet Platform by Merchant as agreed in the Agreement.

Merchant shall immediately report to Comet Rocks any defects, malfunctions or unavailability of the Comet Platform via the Support as defined in § 14.5. Merchant’s rights in case of defect shall be handled and executed within the scope of the maintenance services provided by Comet Rocks as defined in this § 14. If the Merchant demands rectification due to a defect, Comet Rocks is entitled to choose the type of rectification.

Any warranty claims under the applicable statutory law shall expire within 1 year. The period begins once Merchant is able to access the Comet Platform or uses the Comet Platform after provision of the respective Program Parts within the scope of the maintenance services. Any claims for damages are subject to the limitations set forth under § 18.

Comet-Rocks shall set up a point of contact in form of an e-mail address (“Support”) to respond inquiries submitted by Merchant in connection with the use of the Comet Platform and the reporting of defects. The Support does not handle any inquiries submitted by End Customers. The Support services will be available during Comet Rocks’ usual business hours on Monday to Friday; excluded are national public holidays and public holidays in Germany and Berlin. Support hours are extended for customers on both scale and enterprise contracts.

The contact details of the Support are available on the Comet Website and may be subject change at Comet Rocks’ sole discretion.

15.  Right of Use

Comet Rocks hereby grants Merchant for the term of the Agreement a non-exclusive, revocable, non-transferable, non-sublicensable, geographically unrestricted right to use the Comet Platform in accordance with the purposes set forth in this Agreement.

This right of use granted to Merchant also includes making the Comet Platform available to Authorized Users and End Customers for the purposes set forth in this Agreement. Merchant is not permitted to commercially exploit the Comet Platform by distributing or selling it or parts thereof to third parties.

Merchant is not entitled to examine the mode of operation by way of so-called "reverse engineering", modify, edit, transfer or decompile the Comet Platform or parts thereof, unless this is expressly permitted by law and/or required for using the Comet Platform in accordance with the purposes of this Agreement.

To the extent that Comet Rocks requires any rights, including any intellectual property rights and know-how, from Merchant for the provision of its services under the Agreement, the Merchant hereby grants Comet Rocks a non-exclusive, royalty-free, non-transferable, irrevocable, non-cancable right to use such rights during the term and for the purpose of executing this Agreement.

The granting of the aforementioned rights shall not be associated with any transfer of ownership and property rights. These shall remain with the respective parties.

16.  Additional Services

As agreed between the Parties from time to time, Comet Rocks may provide the following additional services which are relating to or associated with the Comet Platform but do not fall under the scope of services Comet Rocks is obliged to provide under this Agreement:

1. Services in connection with the individual setting up, configuration, customization and optimisation of the Comet Platform for the Merchant, including of any Platform Services and Third Party Services as well as any of Merchant’s Micro-Stores.
2. Services in connection with the assistance of the Merchant regarding the implementation and maintenance of the technical requirements and specifications set forth in Technical Documentation, provided that these services are not owed by Comet Rocks pursuant to the Technical Documentation.
3. Services in connection with the training of Merchant and its Authorized Users with respect to access to and use of the Comet Platform.
4. Services in connection with the development, integration and connection of additional services, applications and functionalities required by Merchant for/into/with the Comet Platform.
5. Services in connection with rectification of defects caused by the Merchant or any of Merchant’s Authorized Users or other persons or entities engaged by Merchant pursuant to 17.2.

The above list of additional services is not exhaustive. Therefore, it cannot be concluded from the lack of mentioning of certain services in this § 16 that such services are the subject of Comet Rocks‘ contractual obligations under this Agreement.

Depending on the type of the additional service, Comet Rocks shall render the additional service against payment of a separate remuneration based on time and effort or at a fixed price and within the scope of its operational possibilities.

Comet Rocks provides the additional services only subject to a corresponding Order Form mutually agreed by the Parties in writing.

17.  Warranty

Comet Rocks shall be liable for any defects of the Comet Platform in accordance with the statutory provisions. Comet Rocks will remedy such defects at its own discretion within the scope of the maintenance services to be provided in accordance with § 14.

Comet Rocks shall not be liable for any defects caused by Merchant or any of Merchant’s Authorized Users or other persons or entities engaged by Merchant (e.g. defects caused by wrong configuration of the Comet Platform or defects caused by errors of the Merchant Systems). Comet Rocks will remedy such defects in accordance with § 16.

Any strict liability for initial defects according to Sec. 536a para. 1, 1st alt. of the German Civil Code (BGB) is hereby excluded.

18.  Liability

Comet Rocks shall be fully liable in cases of any loss or damages caused by willful intent (Vorsatz) or gross negligence (grobe Fahrlässigkeit), in cases of damages that result from injury to life, body or health, in case of liability provided by law, as under the Product Liability Act (Produkthaftungsgesetz) and in cases of liability due to a guarantee (Garantie).

In case of slight negligence (einfacher Fahrlässigkeit), Comet Rocks shall only be liable if any loss or damage is cause by an infringement of a fundamental contractual duty (wesentliche Vertragspflicht). In such case, Comet Rocks’ liability shall be limited to the amount of the typically foreseeable damage. A fundamental contractual duty in the aforementioned sense is a duty which is essential for duly execution of the Agreement and the achievement of the Agreement’s purpose and on whose compliance the other Party regularly relies on. The typically foreseeable damage is any damage which occurs as typical effect in a normal course of a damaging event.

With respect to Comet Rocks’ liability against Merchant under § 18.2, the Parties agree that such typically foreseeable damage does not exceed the remuneration paid by the Merchant to Comet Rocks for provision of the services under the Agreement in the twelve months preceding the damaging event.

Otherwise, Comet Rocks’ liability shall be excluded.

In case of § 18.1 the statutory limitation period shall apply. Otherwise, damage claims shall become time-barred within twelve (12) months of becoming aware of them, but no later than ten (10) years after their occurrence.

The aforementioned limitations and/or restrictions of liability shall also apply to the personal liability of the employees, representatives and organs of Comet Rocks.

If a Party is affected by an event of Force Majeure, the affected Party must immediately inform the respective other Party, stating (i) the date on which the event of Force Majeure occurred, (ii) a reasonable estimate regarding the termination of the same and (iii) the nature of the Force Majeure. Each Party shall be relieved of its performance obligations for the duration of the disruption caused by the Force Majeure event and to the extent of its effect, even if it should be in default. Liability for damages caused by the event of Force Majeure to either Party is excluded.

19.  Indemnification

Comet Rocks warrants that the services provided as well as the rights granted by Comet Rocks to Merchant under this Agreement are free of third party rights, in particular free of intellectual property rights, such as patent rights, trademark rights and copyrights, or that Comet Rocks has been granted corresponding rights of use by the respective rights holder and that the use and/or application of the Comet Platform does not lead to any patent, license or other property right infringement. In this respect Comet Rocks shall indemnify the Merchant against any claims of third parties, including reasonable attorney fees, provided that:

1. Merchant notifies Comet Rocks immediately of any claim at least in text form;
2. Merchant does not take any legally relevant actions towards the third party, in particular does not settle out of court without the written consent of the other party, does not make an acknowledgement or does not take any other actions which are equivalent to this;
3. Merchant supports Comet Rocks in the legal defense against the third party to the necessary extent, in particular by providing information; and 
4. Merchant grants Comet Rocks the possibility to determine and implement the strategy of the legal defense, in particular by selecting lawyers and drafting pleadings. For this purpose, the Merchant shall provide the necessary declarations and grant powers of attorney. Comet Rocks shall take into account the legitimate interests of the Partner in the legal defense.

In addition to the aforementioned provisions in this § 19, Comet Rocks shall make reasonable efforts to ensure that Merchant can use the services provided by Comet Rocks even in the event of conflicting third party rights. For this purpose, Comet Rocks may:

1. procure the necessary rights required for the use of the services as agreed under this Agreement; or 
2. modify or replace the services in such a way that their use is not restricted and the third parties’ rights are no longer affected.

Should the provision of the necessary rights and/or the necessary changes unreasonably affect Comet Rocks is Comet Rocks entitled to terminate the Agreement vis-à-vis the Merchant. Further rights of the Parties shall remain unaffected.

20.  Remuneration, Payment Terms

Merchant shall make the following payments to Comet Rocks under this Agreement:

1. Payment of a fixed minimum monthly fee for Merchant’s access and use of the Comet Platform (“Platform Fee”) depending on the applicable price tier as defined in Comet Rocks’ Price List. 
2. Payment of a variable fee for each completed transaction executed via the Comet Platform equal to a specific percentage of such transaction, net of any taxes and shipping fees (“Transaction Fee”), as defined in Comet Rocks’ Price List. 
3. Add-on service Fees do not form part of this agreement and will be governed by a separate agreement between the parties.

Any reference to Comet Rocks’ Price List means the current version of the Price List applicable at the respective time and which may be updated from time to time.

Comet Rocks reserves the right to increase the Platform Fee and the Transaction Fee based on Comet Rocks’ applicable Price List upon written notice to Merchant, provided that any such increase may only be made once per calendar year. For the avoidance of doubt, Merchant agrees and acknowledges that any changes to the Reimbursement Payment is at the sole discretion of the respective payment processor and Comet Rocks has no influence to any such changes.

Any services provided by Comet Rocks to Merchant that go beyond the scope of services set forth in this Agreement shall be charged to Merchant based on time and material and in accordance with the applicable rates set forth in Comet Rocks’ Price List, unless the Parties have agreed otherwise in writing.

Any fees mentioned in this Agreement, including any Order Form or the Price List, are net amounts, meaning exclusive of any applicable tax, in particular value added tax ("VAT") (Umsatzsteuer) at the respective statutory rate.

Comet Rocks will invoice all fees to Merchant on a monthly basis and all fees set forth in such invoice shall be paid within 30 days from the date of the invoice.

A reduced minimum Platform Fee is applied for annual payments.

21.  Remuneration, Payment Terms

This Agreement commences on the Effective Date and remains in full effect until terminated in accordance with this Agreement. The Agreement has an initial term of 12 months and automatically renews at the frequency of three (3) months, unless agreed otherwise in a specific Order Form. Either Party may terminate the Agreement by giving written notice thereof at least 30 days prior to the end of the respective term.

Opt-out Period: The customer is granted the option to terminate the agreement within the first 3 months after entering into the agreement if they are not satisfied with the service.

Any rights of the Parties to terminate this Agreement for due cause remain unaffected. The Parties shall be entitled to terminate this Agreement for due cause, if there is a cause which makes the continuation of this Agreement unacceptable for one Party, even taking into account the justified interests of the other Party.

Each Party is in particular entitled to terminate this Agreement without notice for due cause if:

1. a supervisory authority objects to the execution of this Agreement and a time limit set by such authority to cure the relevant defect has expired unsuccessfully, or such authority prohibits at least one of the Parties from further executing this Agreement;
2. the other Party repeatedly and/or significantly violated the provisions of this Agreement.

Notwithstanding the foregoing, Comet Rocks is also entitled to terminate this Agreement without notice for good cause if any fees owed by Merchant are more than thirty (30) days overdue until such amounts are paid in full:

Any notice of termination must be in writing. The date of receipt of the letter of termination shall be decisive for compliance with the deadline.

Upon termination of this Agreement, the Merchant and its Authorized Users shall no longer be entitled to access and use the Comet Platform. The Merchant shall ensure that it backs up and/or migrates any Merchant Data stored in the Comet Platform in due time before the expiry of the term of the Agreement. Comet Rocks will assist with the export and migration of any Merchant Data if and to the extent agreed by the Parties in accordance with § 16.

22.  Confidentiality

Any information, findings, results, data and documents disclosed between the Parties or obtained by one Party in connection with this Agreement or its execution ("Confidential Information") shall be subject to confidentiality, regardless of how they are embodied, how they are communicated or obtained (e.g. by unencrypted e-mail) or whether they are expressly marked as requiring confidentiality (e.g. "confidential" or "secret").

The Parties shall use any Confidential Information only for the purposes of this Agreement and as required for its execution as well as only within the limits provided for in this Agreement. The disclosure of Confidential Information shall be limited to the extent necessary for the performance of the Agreement ("need-to-know").

The Parties shall undertake appropriate technical and organizational measures to prevent Confidential Information from being subject to unauthorized use, access or disclosure. The receiving party may disclose Confidential Information to the extent required by law or by order of a court, supervisory authority or other judicial or administrative body.

The Parties are obliged to ensure that any Authorized Users as well as any other employees, persons and entities who have access to Confidential Information are subject to confidentiality in accordance with the provisions set forth in this Agreement. To the extent permitted by law, these confidentiality obligations shall also be imposed on the employees of the respective Party for the time after their employment is terminated.

The confidentiality obligations set forth in this Agreement shall not apply, if the Confidential Information:

1. were demonstrably known to the receiving Party prior to their disclosure by the disclosing Party; or
2. were known or generally accessible to the public prior to their disclosure by the disclosing Party or become known after their receipt without the receiving Party’s fault; or
3. essentially match with information disclosed or made available to the receiving Party by an authorized third party.

The confidential obligations set forth in this Agreement shall remain in force after termination of this Agreement for an additional period of three (3) years, irrespective of the type of termination. Upon termination of the Agreement, the receiving Party will upon request of the disclosing Party return or destroy all copies of Confidential Information, unless the receiving Party is subject to a statutory retention obligation.

23.  Data Protection

The Parties shall comply with the applicable data protection laws, in particular the GDPR. In its capacity as controller in the meaning of Art. 4 (7) GDPR, the Merchant must in particular ensure that the processing of personal data in connection with using the Comet Platform is based on a legal basis set forth in Art. 6 GDPR and the data subjects are informed in accordance with Artt. 13, 14 GDPR. Merchant must also ensure that any use of cookies and similar technologies integrated into any of Merchant’s Micro-Stores is in accordance with the applicable laws.

Comet Rocks will provide Merchant with information on the processing of personal data relating to the Platform Services. Comet Rocks may also provide Merchant with a technical solution for obtaining and managing consent from any users visiting Merchant’s Micro-Stores if required for the placing of cookies and similar technologies there. Comet Rocks does not provide any warranty or representation and does not assume any liability for the accordance of the information provided as well as the consent management solution provided with the applicable laws. Any use of the information and the consent management solution are at Merchant’s own risk.

The Parties agree that provision of the Comet Platform by Comet Rocks to Merchant under in this Agreement includes processing of personal data by Comet Rocks on behalf of Merchant in accordance with Art. 28 GDPR. For this purpose, the Parties enter into the Data Processing Agreement by executing this Agreement.

Comet Rocks will maintain appropriate technical and organizational measures as defined in the Data Processing Agreement to ensure security of Merchant Data. However, this does not relief Merchant of having in place sufficient backup measures; Merchant remains to be obliged to implement and maintain sufficient backup routines regarding its Merchant Data. Comet Rocks is not liable for any loss of data due to insufficient backup routines implemented and maintained by Merchant.

24.  Final Provisions

Comet Rocks may use Merchant’s name and logo on the Comet Website and in other media (e.g. social media channels, print media, presentations) for referencing and advertising purposes and identify Merchant as a Merchant of the Comet Platform, unless Merchant explicitly objects to such use.

There are no verbal ancillary agreements to this Agreement. This Agreement may not be amended, modified or superseded, unless expressly agreed in writing by both Parties. This shall also apply to any amendment to this written form clause.

This Agreement shall be governed by German law with the exclusion of its conflict of law provisions. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

The exclusive local place of jurisdiction for all disputes arising from and in connection with this Agreement shall be Berlin, Germany.

Should any provision of this Agreement be or become invalid or unenforceable, or should a gap in this Agreement become apparent, this shall not affect the validity of the remaining provisions of this Agreement. In place of the invalid or unenforceable provision or in order to fill the gap, the valid and enforceable provision that comes closest to what the Parties would have agreed upon when concluding this Agreement, if they had been aware of the need for a suitable provision, shall apply without any further action or agreement by the Parties. 

Annex - Price List

This Price List forms part of the Agreement between Comet Rocks and Merchant and defines the applicable fees.

1.  Platform Fee

Comet Offers 3 Platform packages, each with its own associated Platform fee and included services.

Customers are able to choose between the below pricing packages in the order form.

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2.  Transaction Fee

A 2.5% transaction fee will be charged only in cases where Comet’s PSP service is used by the merchant. The details for this ad on service will be outlined in a separate agreement.

3.  Reimbursement Payment

The Reimbursement Payment Fee equals the fees charged by the payment processor (currently "Stripe") to Comet Rocks for processing transactions on behalf of the Merchant. This is passed-through to the merchant at cost.

4.  Professional Services

Any additional professional services provided by Comet Rocks are billed at the following hourly rates:

1. Engineer: 150 EUR
2. Designer: 120 EUR
3. Marketing Campaign Manager: 100 EUR

Should professional services be required, these will be clearly agreed upon up front and included in a separate order form.

5.  Add-on Services

These are services offered custom to specific merchants and delivered on request only. Each service listed as an add-on service in the pricing table will be priced separately and be governed by its own separate terms and conditions.

6.  Expenses

Comet Rocks will charge reasonable travel and lodging expenses incurred for any onsite professional services. Receipts will be provided.

7.  Taxes

All fees are exclusive of any applicable taxes.

8.  Modifications

Comet Rocks may modify these fees as per the terms of the Agreement. Any changes will be notified to the Merchant in writing.