Terms of Service

Last Updated: 05/01/25

IMPORTANT, READ CAREFULLY: Zelos Internet GmbH (HillFusion), Alter Wall 32, 20457 Hamburg,Deutschland (further: “Provider”) engages in providing access to Cloud Services, including on-premise Software, to business clients (further: “you”; “your”; “Customer”). By installing or using the software governed by these ToS or any additional components, upgrades, patches, updates and/or related services thereof or accessing the Cloud Services, whether currently supplied or supplied in the future by the Provider, you agree on (1.) these ToS, (2.) theProvider’s privacy policy and (3) the Provider’s commissioned data processing contract being binding on you at all times. If you do not agree with any of these documents, you may not install/use the Software or access the Cloud Services. If you represent another person, by accepting, you also confirm that you are authorized to enter into contracts on that person’s behalf.

These ToS form a contract between you personally or, if you are authorized to represent a legal entity or natural person to acquire or use the Software, or to use and/or access theProvider’s related services, between the legal entity on whose behalf you are acting (in both cases "you", "your", or “Customer”) and the Provider.

Having agreed on this, the parties hereby stipulate the following terms and provisions as governing the contractual relationship set out below:

1. Subject

(1) For the term of this contract, the Provider will supply Cloud Services (also called Softwareas a Service; SaaS), including on-premise software and support, to the Customer in their respective current version. “Cloud Services” shall refer to on-demand software applications stored and executed on the servers of the Provider, in a data center used by the Provider or a third party service provider in accordance with the Order Confirmation. The Customer may use the Cloud Services for his own purposes and collect, store, process and generate his data with the help of the SaaS.

(2) The Customer may access the Cloud Services by web or API and does not have to locally install the software operated by the Provider. This excludes components which must be operated in the Customer's own network infrastructure, which can be downloaded, installed and updated by the Customer ("on-premise service").

(3) The respective current documentations are available in electronic form on the Provider's website and may be accessed at here. These contain the service description that applies to the contractual Cloud Service as defined in the order confirmation.

2. Registration, conclusion of the ToS

(1) By registering on hillfusion.com or installing the app via shopify.com App store, the Customer makes an offer to conclude this ToS.

(2) After verification of the registration by the Provider, the Customer receives a confirmation e-mail with his access credentials. Upon receipt of the confirmation e-mail, the contract shall be concluded.

3. Services rendered by the Provider

(1) Cloud Services:

(a) The Provider shall deliver the Cloud Services covered by this contract, as specified in the order/order confirmation, to the gateway point (junction between public internet and the network of the hosting service provider) and grant the corresponding licenses (pursuant to Clause 5) to the Customer.

(b) In order to offer consistent performance in the event of changes in technical standards, legislation or other external factors, or to implement technical developments and improvements to the Service, the Provider reserves the right to – within reason –implement changes to the Cloud Services, of which it will inform the Customer by e-mail within a reasonable period of time before they come into effect.

(c) The Provider shall use reasonable endeavors to maintain an average monthly system availability of at least 95%. System downtime due to maintenance work, force majeure, failure of the internet network or breach of contract by the Customer shall not be considered as system availability downtime and therefore not constitute a defect of the Provider’s services.

(2) Configuration, installation and training: The Customer shall personally setup the CloudService (configuration/data migration/data source integration, in case of on-premise services software installation). The Provider does not owe any customizing (adaptation and parametrizing) or reprogramming of the Cloud Services according to the wishes of theCustomer. At the Customer's request, the Provider shall provide such services or training in accordance with the current price list.

(3) Support services: Within its business hours 8am to 4pm (GMT+2), the Provider shall offer advisory support by e-mail info@hillfusion.com. In the event that requested support services are not covered by the agreed scope of support, the Provider is entitled to charge for the services provided in accordance with its current price list. The Provider shall render the support services with reasonable skill and care. Furthermore, the Provider shall inform the Customer about new updates and upgrades by e-mail. Additional services are subject to further agreements.

(4) Maintenance: The Provider shall maintain the Cloud Services in a condition suitable for their contractual use and shall carry out the necessary maintenance and repair work ("Maintenance"). The corresponding measures shall be carried out at regular intervals and when defects, malfunctions or damage occur. The Provider shall preferably carry out Maintenance outside normal business hours (between 8 p.m. and 6 a.m.). Prolonged downtime intervals due to maintenance work shall be notified to the Customer in due time. Maintenance services at the Customer's premises shall be carried out by remote access ("Remote Desktop Sharing") and shall be coordinated with the Customer.

(5) Trial versions: The Provider shall not provide support for free beta, trial or preview versions of Cloud Services ("trial versions") which are marked as free of charge and/or are available with limited functionality or for a limited period of time. Furthermore, they shall not be subject to the warranty. The Provider may discontinue free trial versions at any time.

(6) End of Life/EOL Termination: If a Cloud Service is abandoned, discontinued or functionally replaced by a new product or solution ("End of Life" - "EOL") by the manufacturer of a third party software, the Provider shall have a special right of partial termination of support for the third party software concerned with a notice period of six months. If the EOL occurs for the Provider's own software, the Provider shall announce the EOL date to the Customer by e-mail within a notice term of at least six months. The announcement of the EOL shall be deemed to be an orderly termination of the support for the corresponding Cloud Service at the next possible point in time. In any case, the Provider shall inform the Customer indue time about possibilities for updates or a migration to a new SaaS.

4. Customer obligations

(1) Client-side connection to the Internet shall be within the Customer's sole sphere of responsibility.

(2) The Customer is responsible for preventing unauthorized access to its equipment, systems and networks. Systems and components should only be connected to the Customer's corporate network or the Internet if and to the extent this is necessary and suitable security measures (e.g., use of firewalls and network segmentation) are in place.

(3) Regarding on-premise services, the Customer shall inform himself about the key operational characteristics of the Cloud Services and their technical requirements (i.e. database, operating system, hardware and data carriers). He is responsible for proper installation and configuration of the software on his IT systems. The documentation shall contain the requirements for the IT environment and operating conditions on client side, which the Customer shall provide and maintain. Upon Customer's request, Provider shall support Customer in the installation and configuration of the Software for a fee in accordance with its current price list and train Customer and Customer's authorized users (hereinafter "Authorized Users") in the use and operation of the Software. During operation, the Customer shall take all reasonable technical measures for access control and system security to protect the software and Provider's documentation.

(4) The Customer shall keep the access credentials (passwords for authentication) assigned to or designated by him secret, protect them from access by third parties and not disclose them to unauthorized users. The Customer shall implement and maintain reasonable security measures to maintain safety of the access credentials and inform the Provider immediately about any suspicion that unauthorized persons may have become aware of this access data.

(5) Before feeding any data into the Provider's Cloud Services, the Customer shall examine such data for risks such as viruses, worms or trojans and shall use state of the art virus protection programs.

(6) The Customer shall periodically create backup copies of all data created, used and/or applied with the SaaS to enable its reconstruction in the event of data loss.

(7) When using the SaaS outside of Germany, the Customer must observe the export control laws of the relevant country and any export prohibitions and licensing requirements and, if necessary, coordinate the latter with the Provider.

5. Extent and conditions of permitted use

(1) Extent:

(a) All rights to the Cloud Services - especially the copyright and other industrial property rights - are the exclusive property of the Provider or its licensors. Except for the limited license granted herein, the Customer has no right, title or interest in or to the SaaS, any of its components or any intellectual property rights related thereto.

(b) For the term of this contract, the Provider hereby grants the Customer a worldwide, non-exclusive, non-transferable, non-sub licensable, and personal right to access the CloudService for its internal business operations, load the user interface of the Software for display on the screen into the main memory of the end devices used for this purpose and to make the resulting reproductions of the user interface by the means stipulated within this contract in accordance with the Documentation.

(c) The license grants Authorized Users of the Customer the right to access the SaaS, in particular to configure and use the software and the interfaces of the software applications (API) within the contractually agreed scope of use and, in the case of on-premise service, to download and install the corresponding software. The access credentials for the CloudService may not be used on multiple instances or by more than one person at the same time.

(d) Insofar as the Provider deploys new versions of the SaaS during the term of this Agreement, the license shall apply accordingly. For on-premise services, the Customer's right to use the previous version of the software shall expire upon implementation of the new version for use on live systems.

(2) Conditions:

(a) The Customer may not use or permit others to use the Cloud Services or this license (in whole or in parts) for any commercial or other purpose not explicitly governed by this contract or required by law without first having obtained a license to do so from the Provider. This especially encompasses providing services to third parties by using the SaaS and republishing/redistributing any content thereof.

(b  Unless expressly agreed otherwise, the Customer is not entitled to perform the following acts: (i) sublicense and/or resell the Cloud Services or otherwise make them available to third parties; (ii) combine the Cloud Services with its own "value-add" to create a commercial solution; (iii) copy, decompile, disassemble, translate or reverse engineer the Cloud Services in whole or in part or otherwise extract the source code or algorithms or processes from the Cloud Services, except as permitted by law (such as Section 69d UrhG), or circumvent technical limitations in the Cloud Services; (iv) modify, adapt or create derivative works of the Cloud Services; (v) remove any copyright notices, trademarks or other proprietary notices from the Cloud Services; (vi) use the Cloud Services in a manner that violates any applicable law; (vii) use the Cloud Services in any way that may cause damage to, impairment of or a material degradation of the Cloud Services supplied by theProvider to other customers. The Customer shall impose upon its Authorized Users, the obligation to comply with the provisions of these ToS applicable to them.

(c) If the Customer feeds his own software into the Cloud Services, he shall ensure that he has obtained the corresponding reproduction rights from the licensor of this software for use within a Cloud Service. He shall indemnify the Provider against all claims of third parties based on the data fed by him into the SaaS/collected or generated by using the SaaS and stored in the SaaS and shall reimburse the Provider for all necessary costs incurred by the Provider due to possible infringement of rights.

(d) Breach of contract or unlawful use: In the event of the Customer's breach of contract or unlawful use of the Cloud Services, the Provider may, within reason, temporarily restrict or completely suspend the Customer’s access. This applies in particular if an unauthorized user accesses the Cloud Services as well as to avert damage if the unlawful use could have a detrimental effect on the Cloud Service, on other Customers of the Provider or on the rights of third parties. The Provider shall promptly notify the Customer by email of any such restriction or suspension, if reasonable in advance. The foregoing section shall apply mutatis mutandis to the blocking of interfaces (APIs) provided by the Provider to the Customer for communication with third party software.

(e) The Customer shall hereby grant the Provider and its subcontractors the non-exclusive right to use the Customer data and/or Customer software fed into the Cloud Services and/or collected, generated or stored by using the Cloud Services, solely and only to the extent necessary for the purpose of providing the Cloud Services, in particular to create backup copies, to perform support measures and application security tests required in the context of information security. In order to eliminate malfunctions, the Provider shall also be entitled to make changes to the structure of the data or the data format.

6. Data migration

(1) During the term of the contract, the Customer may at any time access, extract or export his Customer data. For this purpose, the Provider shall supply the necessary extraction tools to enable the Customer to export his data in a standard format. Retrieval and export may be subject to the technical requirements and limitations described in the Documentation. The Provider and the Customer may, if necessary, agree on a specific method of accessing and exporting the Data.

(2) After contract termination, the Provider shall offer the Customer, for a period of one month, to provide the contents stored on the storage space designated for the Customer on a data storage medium. If the Customer does not exercise this option, the Provider shall delete or overwrite the Customer data remaining on the Cloud Services, unless their retention is required by applicable law. The retained data shall be subject to the mutually agreed confidentiality rules.

7. Compensation

(1) The Customer shall pay compensation to the Provider in accordance with this agreement. Amount and chosen remuneration/subscription model shall be further specified by the order confirmation. Insofar as the remuneration is based on a subscription fee, this shall be due in advance, for the initial basic term at the start of the contract and thereafter at the start of each renewal term. If agreed upon, a monthly pay-per-use fee shall be due in advance.

(2) All prices are exclusive of the applicable statutory value-added tax.

(3) The compensation is determined for the basic term. After expiration of the basic term or a respective extension term, the Provider may increase the compensation by giving two months' notice to the Customer in writing, effective as of the beginning of the next contract term. After receipt of the adjustment notice, the Customer may terminate the contract with effect as of the end of the current contract term. If the Customer does not cancel by the end of the current contract period, the amended remuneration shall be deemed to have been agreed as of the new (extended) contract period. The Provider shall point this out in the adjustment declaration.

(4) An increase of booked usage units ("upgrade") is possible at any time, a reduction ("downgrade") only with effect at the end of the basic term or an extension term. Regardless of the effective date of the upgrade, the term shall correspond to the remaining current term and the remuneration shall be calculated accordingly on a proportionate basis. For additional services requested by the Customer and supplied by the Provider, the Provider's current price list shall apply.

(5) Unless otherwise agreed, invoices shall be delivered electronically. The Customer shall ensure that the e-mail address provided by him is always available and that he checks his e-mails regularly. Invoices sent by e-mail shall be deemed delivered. Within three days of becoming aware of any change of address, e-mail address or tax number (in particular VAT identification number), the Customer shall inform the Provider in writing.

(6) Objections to invoices must be raised by the Customer within five working days of the invoice being issued, at least in text form. Subsequent complaints shall not be admissible.

(7) If the Customer defaults on a payment, interest on overdue payments shall accrue at a rate of 8% above the base rate of the European Central Bank. The Provider may deny access to the Cloud Services for which the Customer is in default of payment after the fruitless expiration of a reasonable grace period to effect payment. Further rights of the Provider remain unaffected.

(8) The Customer may only set off counterclaims that are undisputed or have become res judicata. He may only assert a right of retention on the basis of claims arising from this contract.

8. Term and termination

(1) Date of entry into force, basic term as well as the extension term of the respective Cloud Service shall be determined by the order confirmation. The contract shall initially run for the basic term agreed therein. After expiry of the basic term, the contract shall be automatically extended by the contractually agreed extension term, unless it is terminated by one of the parties with one month's notice to the end of the respective basic or extension term.

(2) The option of extraordinary termination remains unaffected. In particular, an extraordinary cause for the Provider shall be deemed to apply, if the Customer defaults on the payment of a due remuneration for more than two months despite receiving a formal reminder. Terminations must be at least in text form to be effective.

(3) Upon termination of the contract, the Customer's right to use the respective Cloud Service, and thus its ability to access it, shall be revoked.

9. Liability and Force Majeure

Irrespective of the legal basis of the relevant claim, the following provisions shall apply with respect to the Customer’s claims for damages and his claims for reimbursement of wasted expenses:

(1) The Provider shall be liable for all damages

  • which are caused to the Customer by gross negligence or willful misconduct of the Provider or its vicarious agents or which are caused by culpable injury to life, body or health caused by the Provider and its vicarious agents or by the products,
  • which have arisen due to the Provider's failure to comply with a warranty promise;
  • for which the Provider is liable under the German Produkthaftungsgesetz

In all other cases, the Provider shall be liable as follows:

(2) In the event of damage to property and financial loss caused by the Provider's simple negligence, the Provider and its vicarious agents shall only be liable in the event of a breach of a material contractual obligation, but limited in amount to the damage foreseeable at the time of the conclusion of the contract and typical for the contract.

  • Material contractual obligations are only those obligations the fulfilment of which is necessary for the proper performance of an agreement and on the fulfilment of which the Customer may rely.
  • The parties agree that the foreseeable damage typical for the contract corresponds to half of the annual remuneration for the Cloud Services. Liability for other indirect or consequential damage and loss of profit is excluded. Any contributory negligence on the part of the Customer shall be offset against the amount of any claim for damages.

(3) For negligently caused data loss, the Provider shall only be liable for the typical recovery effort that would have been necessary for the recovery if the Customer had backed up the data regularly and in accordance with the risks involved.

(4) The Provider shall not be liable to the Customer for any loss of business opportunities, revenue, profit, anticipated savings, income, use or production.

(5) The Customer may only assert a reduction in price in the case of undisputed or legally binding claims, in which case any amounts overpaid based on the undisputed or legally binding reduction may be reclaimed from the Provider in accordance with §§ 812 ff. BGB. For amounts not paid under reservation, § 814 BGB applies.

(6) The Provider shall not be liable for any delay or failure to perform any obligation under these ToS due to unforeseeable events arising after the effective date of these ToS and beyond its reasonable control, such as strikes, blockades, war, terrorism, riots, natural disasters and epidemics ("Force Majeure"), if the Provider is unable to prevent or remedy the Force Majeure at reasonable cost. In this case, the parties shall be released from their mutual performance obligations with regard to the affected part of the performance for the duration of the Force Majeure, including a reasonable start-up phase. Binding deadlines shall be postponed accordingly.

10. Defects in quality and title

(1) The Provider shall be liable for the agreed upon characteristics of the SaaS and for the fact that they do not violate the rights of third parties when used by the Customer in accordance with the provisions of this contract.

(2) The description in the documentation is conclusively authoritative for the properties of theCloud Services' functionality. The Provider shall not be liable for any further characteristics.

(3) The Provider does not warrant that the Cloud Service is suitable for the Customer's business processes. The Customer is responsible for ascertaining the suitability of the ordered service for its application purposes.

(4) Without undue delay, the Customer shall notify the Provider in writing of any defect, including a detailed description of the defect.

(5) Prerequisite for the Customer’s statutory claims for defects is that the suitability of the Cloud Service for the contractual use is reduced beyond an insignificant extent. The Provider shall remedy a defect within a reasonable period of time. The Provider is entitled to circumvent the defect by a workaround solution if the cause of the defect itself can only be eliminated with disproportionate effort, the usability of the Service is ensured and the solution is reasonable for the Customer.

(6) Liability without fault for defects already existing at the time of conclusion of the contract pursuant to § 536a para. 1 Alt. 1 BGB is excluded, except in case of fraudulent concealment of the defect by the Provider. Likewise, claims for such defects based on use under non-agreed operating conditions or a non-agreed system environment are excluded.

(7) Malfunctions caused by (i) improper use or modification of the Cloud Services (including on-premise software) or use in violation of the contract or the law; (ii) failure to install updates; (iii) malware or viruses on the part of the Customer; (iv) third-party software or hardware or failure to maintain the same under the Customer's responsibility; or (v) add-ons shall not constitute a defect. They may be remedied by the Provider at the Customer's request in accordance with the current price list, provided that the Provider is technically able to do so.

(8) The Customer shall notify the Provider immediately and as precisely as possible of any functional failures, malfunctions or impairments of the Software. If the Customer fails to do so, § 536c BGB shall apply accordingly.

11. Subcontractors

The Provider may use subcontractors for the execution of the contract. Where personal data is processed on behalf of the Customer by a subcontractor, the use shall be governed by the contract for commissioned data processing concluded between the Customer and the Provider.

12. Third party rights

(1) Indemnification: Property rights of third parties in this sense are only those to which the third party is entitled in the state of the place of delivery (location), for software this may be the recipient states of the contractual use. The Provider will indemnify, defend and hold the client harmless against any claim for infringement of property rights. The Customer shall

  • promptly notify the Provider in writing of any such claim;
  • permit the Provider to control the defence and all related settlement negotiations;
  • and provide the Provider with such information and assistance as may be necessary todefend or settle the claim.

(2) Exceptions: The Provider shall not be liable for any claims of infringement based on or arising out of

  • unauthorised use, reproduction or distribution of the software;
  • modification of the software without the Provider’s consent;
  • use of an older version of the software, provided that using the update would have avoided the claim and the update was provided free of charge
  • use of the software together with other system components not approved as a suitable system environment in the Documentation; or
  • connection with third party components.

(3) Remedies: In case of a possible claim for infringement of intellectual property rights or at the discretion of the Provider, the Provider may, at its discretion and expense, either:

  • procure for the Customer the right to use the software necessary for the contractual use;
  • replace or modify the software in such a way that it no longer infringes any right and retains essentially the same functions; or
  • to the extent that the aforementioned remedies cannot be reasonably obtained by the Provider, rescind the transfer agreement or the part relating to the infringement and refund to the Customer a portion of the remuneration already paid.

13. Mobile applications

If Cloud Services are provided via mobile applications ("Apps"), the use of the Apps shall be subject to their own, separate terms and conditions, which shall be agreed upon by theCustomer when downloading the mobile application.

14. Third party services

The present ToS do not apply to services that are not supplied by the Provider but by third parties, even if this is done free of charge and/or registration with the Provider is required for their use. For such services, the General Terms and Conditions provided by the third party prior to the use of the services shall apply exclusively. The Provider only arranges technical access to these web services.

15. Confidentiality

(1) Insofar as the contracting parties share trade secrets in order to fulfil the purpose of the contract, each party undertakes to treat all trade secrets of which it becomes aware, either indirectly or directly, as strictly confidential for an unlimited period of time and to use them only for the purposes of implementing this contract.

(2) Trade secrets may only be disclosed to individuals who need access to the trade secrets to fulfil the purpose of the contract and the disclosing party will impose on them the confidentiality provisions governed by this section. Each party will promptly notify the other party in writing of any loss or unauthorized disclosure of Confidential Information. This also applies in the event of robbery, burglary, theft and similar occurrences.

(3) Each party shall take appropriate technical security measures in accordance with the current state of technology to protect trade secrets and shall secure them against unauthorized access or misuse by third parties and against loss by means of appropriate and suitable secrecy and protection measures and shall refrain from commercially exploiting or reproducing the trade secrets itself or through third parties, in particular from reverse engineering or reverse translating them, for example by decompiling or reverse engineering.

(4) The obligations under this clause shall survive the termination of these ToS.

16. Data protection and processing of personal data

(1) With regard to the processing of personal data of the Customer in its capacity as data subject, we refer to the Provider’s Privacy Policy in the currently applicable version, which you can find under: https://www.hillfusion.com/legal/privacy-policy

(2) Both parties to the contract shall observe the applicable provisions of data protection law, and in particular shall oblige the employees deployed in connection with the contract to maintain confidentiality. The Parties shall take all technical and organizational measures necessary to ensure data protection and data security in their area of responsibility.

(3) The Customer is the sole controller of all (personal or other) data he feeds into the CloudServices, stores therein or produces/collects by using the SaaS. He is responsible for the content of such Customer data and its inclusion in the Cloud Service. Software or data fed in by the Customer may not infringe any third-party rights and may not contain any unlawful content. In particular, data collection and processing by the Customer must comply with the provisions of the GDPR (European General Data Protection Regulation) as well asCCPA (California Consumer Privacy Act) where applicable.

(4) If the Provider processes personal data on behalf of the Customer within the scope of the Cloud Services, it shall be a processor in the sense of Art. 4 No. 8 GDPR. In this case, the contracting parties will conclude a separate contract for commissioned processing in accordance with Art. 28 GDPR, § 62 German Federal Data Protection Act (BDSG). As a data processor, the Provider shall take appropriate technical and organizational measures for the security of the processing of personal data in the Cloud Services in accordance with applicable data protection law.

(5) With regard to personal data introduced by the Customer and/or processed by the Provider on its behalf, the Customer shall be the controller and shall therefore ensure at all times that the processing of such data through the use of the Cloud Services is covered by the relevant legal requirements.

17. Final provisions

(1) These ToS shall apply exclusively. The Customer's general terms and conditions shall not apply. Counter-confirmations of the Customer with reference to his own terms and conditions are explicitly rejected.

(2) Subsidiary agreements, amendments, supplements and the mutual cancellation of the contract must be in signed writing. This shall also apply to any amendment of this written form clause. Unilateral declarations or notifications of the Customer which are required tobe received by the Provider shall only require text form, unless the relevant law prescribes a stricter form in an individual case.

(3) All legal relationships between the parties under by this contract shall be governed by the law of the Federal Republic of Germany. The place of jurisdiction for all disputes arising from the contractual relationship between the Provider and the Customer shall be Hamburg, Germany, insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law.

(4) If any provision of this contract is invalid in whole or in part or becomes so after the conclusion of the contract, this shall not affect the validity of the remaining provisions. In all other respects, the parties shall replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to it in economic terms, insofar as no supplementary interpretation of the contract takes precedence or is possible. The same shall apply in the event of a loophole.

(5) The Provider reserves the right to amend these ToS and any additional terms applicable to the software in the areas affected by changes in the law in order to ensure lawful provisions or to reflect changes to the software. If the Customer does not agree with any change to these ToS, the Customer may terminate its use of the products.