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Sonja Seeger

Sales Assistant

sales@econda.de
0721 66 30 35-399

econda GmbH

GENERAL TERMS AND CONDITIONS

econda GmbH
Eisenlohrstr. 43
76135 Karlsruhe
GERMANY

A. GENERAL TERMS AND CONDITIONS FOR ECONDA SOFTWARE

1. SCOPE

(1) econda GmbH, hereinafter referred to as "econda", shall supply everything and provide all services exclusively as per these terms and conditions.

(2) These terms and conditions shall apply to all econda customers, i.e. to consumers in accordance with Section 13 of the German Civil Code (in German: BGB) and to entrepreneurs in accordance with Section 14 of the German Civil Code. econda is entitled to amend and supplement these General Terms and Conditions provided that econda provides sufficient prior notice. Such notice must be published on econda’s website (www.econda.de).

(3) If the customer does not object to the amended or supplemented terms within four weeks after online publication, then the amended or supplemented terms shall become effective. If the customer objects within the specified time, then econda is entitled to terminate the contract at that time when the modified or supplemented terms were to become effective.

(4) Any differing, conflicting or supplementary General Terms and Conditions will not become part of any contract, even if econda is aware of them – unless econda has expressly approved of their validity in writing.

2. OFFER TO ENTER INTO A CONTRACT, CONCLUSION OF A CONTRACT

(1) All offers issued by econda are subject to change. econda reserves the right to make reasonable technical changes.

(2) The contract shall come into force when econda accepts the customer’s application or when econda provides service for the first time. If the customer is an entrepreneur as stipulated in Section 14 of the German Civil Code, then neither an explicit confirmation of receipt nor a declaration of acceptance is required. The consumer shall receive an electronic confirmation of receipt without delay. Any amendments or supplements made by the customer either to the offer to enter into a contract or to these General Terms and Conditions shall constitute a new offer.

(3) The customer warrants that the information it has provided – about itself and other circumstances relevant to the contract within the framework of the offer to enter into a contract or conclusion of a contract – is complete and correct.

(4) The customer is obligated to inform econda without delay of any changes regarding said information; if requested to do so by econda, the customer must confirm information provided. In the event of a culpable violation, econda is entitled to terminate contractual services following notification of its intent to do so.

(5) The consumer has the right to revoke its declarations of intention pertaining to the conclusion of the contract. The period of revocation lasts two weeks. This period shall not begin before the receipt of notification and fulfillment of the obligations to notify in accordance with Section 312 c Subsection 2 of the German Civil Code. With respect to the delivery of goods, this period shall not begin before the date on which goods are delivered to the recipient; as for recurrent delivery of the same type of goods, not before the date on which the first partial shipment is delivered. Compliance with the period of revocation is met if the declaration of revocation is sent punctually. The declaration does not require any justification; it must be submitted in writing to econda GmbH, Eisenlohrstr. 43, 76135 Karlsruhe, GERMANY or via fax to +49 (0)721/663 035 10. Irrespective of whether the declaration of revocation is faxed or mailed, it must include the customer number and a handwritten signature. If revocation is effective, then the services received by both parties must be returned and any utilization made thereof surrendered.

3. PRICES, TERMS OF PAYMENT

(1) The prices of services purchased by the customer are based on respective price quotes and respective price lists. Unless otherwise stipulated in the respective price quotes and price lists, all prices are without sales tax.

(2) All prices are payable in advance and without deductions. Services are invoiced, respectively, for at least 12 months.

(3) Payment for services rendered is due upon receipt of invoice. Payment of the amount billed must appear in econda’s account within 14 days of the invoice date.

(4) Provided that econda issues written notification at least six weeks in advance, it is entitled to increase prices at any time. The new price will become effective unless the customer objects to it within six weeks. If the customer does not object, then the contractual relationship will continue based on the new terms/prices. If the customer objects in time, then both parties have the right to terminate the contract as per a period of notice of one month, starting at the end of the month in which notice is given. Unless otherwise agreed to expressly, the prices are fixed prices.

(5) If there is a delay in payment, econda will charge statutory past-due interest. As regards entrepreneurs, econda reserves the right to ascertain higher damages caused by delay and consequently charge higher past-due interest. If there is a delay in payment, then econda is furthermore entitled to stop providing services; during this time, the customer is still obligated to pay the stipulated charges.

(6) The customer has the right to offset receivables only if counterclaims have been acknowledged in court or are uncontested. Moreover, the customer is authorized to make use of the right of retention only if its counterclaim is based on the same contractual relationship. Any assignment of the customer’s claims against econda to third parties is prohibited.

(7) The customer’s non-use of the contractual services does not absolve the customer of its payment obligations.

(8) As regards payments made by direct debit, econda shall charge 20 euros per returned direct debit provided that the customer is responsible for it; the customer must otherwise prove that damages were considerably lower or did not occur whatsoever.

4. DATA PROTECTION, CONFIDENTIALITY

(1) During the contractual relationship and without additional express consent, the customer’s personal data will be collected, processed, and used exclusively for purposes of executing the contract, which includes billing. The collection, use, and processing of data is performed electronically.

(2) econda ensures that data will be treated confidentially as stipulated in legal guidelines. This obligation will remain in force even after termination of the contract.

(3) econda expressly draws to the customer’s attention that, as per the latest state of the art, data protection and data security cannot be guaranteed if data is transferred in open networks such as the Internet. The customer hereby acknowledges that the provider is technically able, at any time, to view the pages saved on web servers, and possibly other customer data stored there, as well. Under some circumstances, other online users might be able to bypass network security without authorization and to monitor sent messages. The customer alone bears complete responsibility for the security and backing-up of data that it has transferred to the Internet and/or stored on web servers. With regard to its end customers, the customer obliges itself to observe and comply with data-protection regulations.

(4) A written agreement is required by Section 11 of the German Federal Data-Protection Act (in German: BDSG) for the processing of personal data on behalf of a customer (“processing of order data”). econda provides its customers with a standard contract template for a supplementary agreement. Customers can obtain more information at info@econda.de.

5. PROPERTY RIGHTS

(1) All copyrights and other intellectual or industrial property rights to services/work(s) developed or provided as per this contract – especially rights to software, source codes, databases, hardware or other material(s) such as functions, developments, documentation and report templates as well as preparatory materials – remain solely with econda or its licensors. The customer is solely granted a single non-transferable right of use and the rights which have been granted expressly in accordance with these General Terms and Conditions, other general conditions or by other means.

(2) econda expressly reserves all rights to publication, duplication, processing and commercial use of the software and documentation supplied.

(3) The customer is not permitted to alter or otherwise manipulate tracking functions or econda software. Furthermore, the customer is not permitted to alter or remove any trademarks, distinguishing marks or other distinctive features related to the copyright, brand names or other intellectual property rights which appear on contractual objects and in the software – including references to the confidential nature of and observance of secrecy regarding the software. The customer is furthermore not permitted to alter or copy the software, neither in part nor in whole.

6. LIABILITY FOR DEFECTS, GENERAL LIABILITY

(1) If the econda software or the centrally installed econda products or the econda measurement procedures are faulty because of considerable unsuitability for contractual use, then econda is liable as per legal requirements for defects in quality and defects in title. As regards software defects which were already present upon handover to the customer, econda is liable only if it bears responsibility for said defects.

(2) Entrepreneurs are obliged to notify econda of any manifest defects in writing and without delay, whereas consumers must do so within two months of being supplied by econda. Compliance with the deadline is met if the notification is sent punctually. The customer is obligated under these circumstances to provide econda with all documents necessary for analyzing and troubleshooting the defects and, if necessary, must facilitate and grant access to the customer’s servers.

(3) In accordance with legal regulations, econda is liable only for those damages (without limitation of the amount of loss) caused by either intent or by gross negligence of the legal representatives or executive staff of econda; or serious organizational fault; or if a warranted characteristic of econda products, the supplied or centrally installed software, or the econda tracking procedures are missing. Said proviso does not apply to damages/losses associated with impairment of health, bodily injury or death; in these instances, econda is entirely liable.

(4) Irrespective of legal grounds, econda is furthermore liable only for those damages caused by a culpable violation of a fundamental contractual obligation on the part of a legal representative or vicarious agent of econda. Liability is limited to the amount of foreseeable and typical damages that econda could reasonably anticipate based on the information available upon conclusion of the contract.

(5) The aforementioned liability stipulations also apply correspondingly in favor of the employees and authorized representatives of econda.

(6) As regards a careless violation of duty by econda, an entrepreneur must assert claims for damages within one year of damage having occurred.

(7) Said proviso does not apply to damages/losses associated with impairment of health, bodily injury or death. In addition, the statute of limitations for warranty claims is determined by legal requirements.

7. FORCE MAJEURE (ACTS OF GOD)

(1) In the event that a contractual party cannot provide a service due to force majeure, said party is exempted from fulfillment of its commitments as long as the hindrance in question persists. The other party is exempted from its reciprocal commitments during this same period. Reciprocal claims for damages are not possible during said period.

8. TERMINATION OF CONTRACT, CONTRACTUAL TERM

(1) The standard term of the contract is regularly 12 months unless otherwise stipulated on an individual basis.

(2) The contract shall be extended automatically by another 12 months unless a contractual party terminates the contract at least four weeks before the term ends. Termination must be done in writing.

(3) The right to an extraordinary termination of this contract remains unaffected. econda has a particular right to terminate the contract extraordinarily if

  • The customer provides or has provided incorrect information while registering/ordering or while the contract is in force,
  • The customer has failed to make an overdue payment despite a deadline and threat of contract termination,
  • The customer changes or otherwise manipulates econda’s HTML code, other program code, econda software or econda’s tracking procedures,
  • The customer depicts extreme right-wing (e.g. neo-Nazi) content on its web site.
  • Insolvency proceedings are initiated concerning the customer’s assets or the initiation of such proceedings is rejected due to insufficient assets,
  • The customer fails to comply with the General Terms and Conditions.

 

 

(4) Services paid for in advance will be reimbursed only if econda is responsible for extraordinary termination.

(5) Upon termination of the contract, econda has the right to permanently delete all data stored while the contract was in force.

(6) Once the contract has been terminated, the customer must delete all copies of the econda tracking code in its possession (tracking code, provided by econda, that is integrated by the customer into its website and that transfers data to econda servers). If the econda tracking code or parts thereof are not removed from the customer’s website – particularly the case if the customer’s site continues to transmit data to econda servers – then econda is entitled to charge the fee agreed to by the customer until the econda tracking code is removed from the website.

9. FINAL PROVISIONS

(1) The sole place of jurisdiction for any dispute arising from this contract is Karlsruhe, Germany – provided that the customer is a merchant. The same shall apply if the customer does not have any general place of jurisdiction in Germany, or transfers its residence or typical whereabouts outside of this legal jurisdiction, or if its place of residence or typical whereabouts is unknown when a lawsuit is filed.

(2) Exclusively the laws of the Federal Republic of Germany – with the exception of the provisions regarding the uniform United Nations Convention on Contracts for the International Sale of Goods and with the exception of private international law – apply to all contracts concluded by econda on the basis of these General Terms and Conditions and to all claims resulting from said contracts, regardless of type.

(3) Should a provision in these General Terms and Conditions and/or the contract be or become invalid, this shall not affect the validity of the other provisions.

B. SPECIAL TERMS AND CONDITIONS FOR USE OF THE ECONDA MONITOR SOFTWARE

1. OBJECT AND FUNCTIONALITY OF THE ECONDA MONITOR SOFTWARE

(1) The object of these terms is the use of the econda monitor software for collecting and statistically analyzing data and the use of data collected as well as use of the econda Monitor database – including the range and content specified in the respective, current offering.

(2) Statistics supplied by econda are typically generated in real time. In turn, visits to the website are generally reflected in the statistics within minutes.

(3) The term "econda Monitor software" denotes all data and content compiled in the database, the software required for collecting data and creating statistical evaluations, and any system software.

(4) econda undertakes to guarantee software availability of 95% between 8:00 a.m. and 6:00 p.m. on business days, and of 90% at all other times.

(5) econda is entitled to use the services of third parties (subcontractors) to meet its contractual obligations.

(6) econda provides a live demo as well as a performance specification at www.econda.de. Thanks to said demo and the product specification, the customer has had an opportunity to verify the suitability and usefulness of econda software for the customer’s purposes and intentions

(7) The customer acknowledges that minor inaccuracies and anomalies during the use of econda software cannot be ruled out.

(8) econda has the right to modify and alter its range of services provided that so doing infringes only insignificantly or not at all on the contract’s purpose for the customer.

2. CHANGE IN SERVICE PLAN

(1) It is possible to switch at any time to a service plan with a higher monthly fee. The customer must notify econda in writing of its wish to switch, which becomes valid only upon written confirmation from econda. Any such change in service plan is binding and constitutes completion of a new contract as per conditions applicable to the new service plan. When the customer switches to another service plan, a new standard term of contract of 12 months begins with respect to econda Monitor software. Any unused credits from the old contract will be applied toward fees arising out of the new contract.

3. RIGHTS AND DUTIES OF THE CUSTOMER

(1) The customer’s authorized users have access to the econda Monitor software, and the databases. The customer is entitled to use the econda Monitor software only within the scope described as follows.

(2) The customer must arrange and pay for Internet access. The customer furthermore will bear the costs of terminal devices and telecommunications charges.

(3) The customer undertakes to maintain the strict confidentiality of passwords provided by econda for accessing its services and to notify econda immediately if it learns that an unauthorized third party has obtained a password. Should the customer be responsible for third parties utilizing passwords to use econda services, then the customer is liable for paying user fees and compensation for damages to econda.

(4) The customer must appoint a contact person responsible for all matters concerning the partnership with econda.

(5) The customer is not permitted to reproduce the documentation under any circumstances whatsoever. The customer is not permitted to make the econda Monitor software accessible to third parties. The customer is not permitted to

  • Modify, translate, backtrack to the source code, decompile or disassemble the econda Monitor software or documentation – or create derivative works thereof. Information, as defined in Section 69 e of the German Copyright Act, which is required to provide interoperability between independently developed computer programs and econda software can be procured from econda upon payment of the respective fees;
  • Transfer, lend, rent, lease or distribute econda software, or to use it for providing services to or for a third party, or grant to a third party rights to the software or the documentation in any form whatsoever – unless econda has provided its prior written consent to do so, all corresponding charges have been paid, and all other requirements specified by econda have been met; or
  • Remove, alter or deface the designations, labels or markings concerning copyrights or other intellectual property rights pertaining to the software or the documentation.

(6) In case of infringement, econda has the right to an immediate and extraordinary termination of the contract.

(7) For each individual violation, the Customer must pay econda a contractual penalty amounting to 5,001.00 euros. This in no way affects any assertion of additional claims for damages.

(8) The HTML code, JavaScript code or any other program code provided to the Customer by econda may not be altered and must be used for its intended purpose. If the econda program code is altered or otherwise manipulated, then econda has the right to an immediate and extraordinary termination of the contract.

(9) If econda has protected the contractual products and/or services via technical measures (e.g. firewalls or security codes), then the customer is not permitted to remove or bypass these security measures.

(10) The customer must take precautions to ensure the security of his/her data and, in particular, regularly maintain back-up copies in accordance with risks. If the customer detects an issue during or after installation of econda software, he/she must immediately discontinue installation and then do everything possible and/or refrain from certain actions to minimize damage as much as possible. In particular, the customer is obligated to notify econda of the issue without delay.

(11) With regard to the transmission of telecommunications or transfer of data, the customer undertakes to observe econda’s instructions and comply with the protocols and specifications stipulated by econda.

C. SPECIAL TERMS AND CONDITIONS FOR USE OF THE ECONDA CROSS SELL SOFTWARE

1. OBJECT AND PERFORMANCE OF ECONDA CROSS SELL SOFTWARE

(1) The object of these terms is the use of the econda Cross Sell software for collecting and statistically analyzing data and the use of data collected as well as use of the econda Cross Sell database – including the range and content specified in the respective, current offering.

(2) The term "econda Cross Sell software" denotes all data and content compiled in the database, the software required for collecting data and creating statistical evaluations, and any system software. econda undertakes to guarantee software availability of 95% between 8:00 a.m. and 6:00 p.m. on business days, and of 90% at all other times.

(3) econda is entitled to use the services of third parties (subcontractors) to meet its contractual obligations.

(4) econda provides a performance specification on its website. Thanks to said product specification, the customer has had an opportunity to verify the suitability and usefulness of econda software for the customer’s purposes and intentions.

(5) econda has the right to modify and alter its range of services provided that so doing infringes only insignificantly or not at all on the contract’s purpose for the customer.

2. RIGHTS AND DUTIES OF THE CUSTOMER

(1) The customer’s authorized users have access to the econda Cross Sell software. The customer is entitled to use the econda Cross Sell software only within the scope described as follows.

(2) The customer must arrange and pay for Internet access. The customer furthermore will bear the costs of terminal devices and telecommunications charges.

(3) The customer undertakes to maintain the strict confidentiality of passwords provided by econda for accessing its services and to notify econda immediately if it learns that an unauthorized third party has obtained a password. Should the customer be responsible for third parties utilizing passwords to use econda services, then the customer is liable for paying user fees and compensation for damages to econda.

(4) The customer must appoint a contact person responsible for all matters concerning the partnership with econda.

(5) The customer may not reproduce the documentation under any circumstances whatsoever. The customer is not permitted to make the econda Cross Sell software accessible to third parties. The customer is not permitted to

  • Modify, translate, backtrack to the source code, decompile or disassemble the econda Cross Sell software or documentation – or create derivative works thereof. Information, as defined in Section 69 e of the German Copyright Act, which is required to provide interoperability between independently developed computer programs and econda software can be procured from econda upon payment of the respective fees;
  • Transfer, lend, rent, lease or distribute econda software, or to use it for providing services to or for a third party, or grant to a third party rights to the software or the documentation in any form whatsoever – unless econda has provided its prior written consent to do so, all corresponding charges have been paid, and all other requirements specified by econda have been met; or
  • Remove, alter or deface the designations, labels or markings concerning copyrights or other intellectual property rights pertaining to the software or the documentation.

(6) In case of infringement, econda has the right to an immediate and extraordinary termination of the contract.

(7) For each individual violation, the Customer must pay econda a contractual penalty amounting to 5,001.00 euros. This in no way affects any assertion of additional claims for damages.

(8) The HTML code, JavaScript code or any other program code provided to the Customer by econda may not be altered and must be used for its intended purpose. If the econda Cross Sell program code is altered or otherwise manipulated, then econda has the right to an immediate and extraordinary termination of the contract.

(9) If econda has protected the contractual products and/or services via technical measures (e.g. firewalls or security codes), then the customer is not permitted to remove or bypass these security measures.

(10) The customer must take precautions to ensure the security of his/her data and, in particular, regularly maintain back-up copies in accordance with risks. If the customer detects an issue during or after installation of econda software, he/she must immediately discontinue installation and then do everything possible and/or refrain from certain actions to minimize damage as much as possible. In particular, the customer is obligated to notify econda of the issue without delay.

(11) With regard to the transmission of telecommunications or transfer of data, the customer undertakes to observe econda’s instructions and comply with the protocols and specifications stipulated by econda.

Version: January 2014