DYMATRIX GmbH
Terms and Conditions
DYMATRIX GmbH
Lautenschlagerstraße 2
70173 Stuttgart
TERMS AND CONDITIONS FOR ECONDA SOFTWARE
1. SCOPE OF APPLICATION
(1) DYMATRIX GmbH, formerly econda GmbH and hereinafter referred to as “econda”, provides all deliveries and services exclusively on the basis of these terms and conditions. econda software includes the following software products in particular:
– econda Analytics, including Web Analytics (previously Shop and Site Monitor), Click Monitor, Data Services, Plug-in Center, Centricity and Customer Relationship Analytics;
– Cross Sell, including Cross Sell Data Services;
– Audience Relationship Platform, including Audience Relationship Platform Data Services.
(2) econda has made performance descriptions, including software SLAs available on its website. The customer could access these performance descriptions to ascertain whether econda software is suitable and practicable for his purposes and intentions.
(3) econda is entitled to make amendments and modifications to its service offering, provided that the purpose of the contract for the customer is not impaired or is only impaired to an insignificant degree. This also includes, in particular, enhancements to the software and extensions to the range of functions.
(4) These Terms and Conditions apply to all econda customers, i.e. to consumers pursuant to Sec. 13 BGB (German Civil Code) and entrepreneurs pursuant to Sec. 14 BGB.
(5) econda is entitled to make amendments or addenda to these Terms and Conditions. Such amendments and addenda shall be notified by means of amendment on www.econda.de. If a customer does not object to the amended or expanded terms and conditions within 4 weeks of notice being given, the amended or expanded terms and conditions shall become valid. If the customer does object within the specified period, econda is entitled to terminate the agreement on the date, on which the amended or expanded terms and conditions were due to come into force.
(6) econda is entitled to use the services of third parties (subcontractors) to fulfill its contractual obligations.
2. OFFER TO ENTER INTO A CONTRACT AND CONCLUSION OF CONTRACT
(1) All offers issued by econda are non-binding.
(2) The contract is formed upon econda accepting the customer’s application or upon econda’s first performance.
(3) The customer guarantees that the information he has provided – concerning himself 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 undertakes to inform econda without delay of any changes to this information.
3. PRICES, SWITCHING TARIFFS and PAYMENT TERMS
(1) The prices and payment terms for the services used by the customer can be found in the relevant offers and most recent price lists. Prices are ex. VAT unless otherwise stipulated in the applicable offers and price lists. Service fees are due upon receipt of invoice.
(2) Customers may switch to a higher monthly tariff at any time within the tariffs offered by econda at any such time. The desired switch shall be notified in writing and requires written confirmation of econda to be effective. Tariff switches are binding. Any user fees not used under the old tariff will be offset against the fees for the new, higher tariff.
(3) econda is entitled to increase prices after giving 90 days’ prior written notice. The amended price will apply if the customer fails to object to the amended price within 60 days of notice. The contractual relationship will then continue based on the new terms/prices. If the customer objects within the specified period, both parties are entitled to terminate the contract by giving 4 weeks’ notice.
(4) In the event of default, econda shall charge statutory default interest. In the event of default, econda is furthermore entitled to suspend performance, while the customer shall remain liable to pay the agreed fee for the duration of such suspension.
(5) The customer can offset receivables due by econda only if counterclaims have been acknowledged in court or are uncontested. The customer can only exercise a right of retention if his counterclaim is based on the same contractual relationship. Any assignment of the customer’s claims against econda to third parties is prohibited.
(6) Failure to use contractual services on the part of the customer shall not release the customer from its payment obligation.
(7) Where fees are paid by direct debit, econda charges a fee of €20 per return debit if the customer is responsible for the return debit, unless the customer demonstrates that no damages or significantly lower damages have been incurred.
4. PRIVACY AND CONFIDENTIALITY
(1) The customer’s personal data will be collected, processes and used by econda during the contractual relationship without further explicit consent for the purposes of executing the contract only, including billing. The collection, use, and processing of data is performed electronically.
(2) econda guarantees that the data provided will be treated confidentially as stipulated in the legal guidelines. This obligation shall persist beyond the ending of the contract.
(3) econda explicitly informs the customer that data protection and data security cannot be guaranteed for data transfers on open networks such as the internet according to the latest state of the art. The customer is aware that the provider can view the site offer saved on the web server and in some circumstances also other data of the customer that is stored there for technical reasons. Under certain circumstances, other internet users may be technically capable of gaining unauthorized access to network security and monitoring message traffic. The customer alone bears full responsibility for the security and backup of data that he has transferred to the internet and saved on web servers. It is the sole responsibility of the customer to observe and comply with data protection regulations with respect to his end customers.
(4) A written agreement is required according to Section 28 General Data Protection Regulation (GDPR) for processing personal data on behalf of a customer (“contract processing”). econda offers its customers a boilerplate contract for such an additional agreement. More information for customers can be found at info@econda.de. The contract is also available to download in the Support Portal .
5. RIGHTS AND OBLIGATIONS OF THE CUSTOMER
(1) The customer’s authorized users have access to econda Software. The customer is authorized to use econda software as follows.
(2) The online connection is established at the instigation and cost of the customer. He also bears the costs for the end devices and telecoms charges.
(3) The customer undertakes to treat passwords received from econda for the purposes of access its software with strict confidence and to inform econda without delay upon becoming aware that unauthorized third parties have gained knowledge of such a password. If third parties are using econda services by using passwords, and the customer is at fault for this, then the customer shall be liable to pay econda a usage fee and damages.
(4) The customer may not reproduce the documentation in any conceivable manner. The customer may not grant third parties access to the econda software. The customer is not permitted:
– to undertake amendments or translations, reverse engineer the source code, decompile, or disassemble the econda software or documentation or to create works derived therefrom; information within the meaning of Sec. 69e German Act on Copyright and Related Rights (Urheberrechtsgesetz) which is necessary in order to establish interoperability between independently developed computer programs may be acquired from econda upon request and subject to payment of the prices as are applicable at any such time;
– to transfer, loan, lease, market, or sell the econda software or to use such to provide services to or for third parties, or to grant third parties rights to the software or the documentation in any form unless econda has granted written prior consent, corresponding fees have been paid and all other conditions imposed by econda have been fulfilled; or
– to remove, modify or make illegible names, labels or marks relating to the copyright and other intellectual property rights to the software or documentation.
(6) In the event of an infringement, econda is entitled to extraordinary termination.
(7) For every infringement committed, the customer is obliged to pay econda a contractual penalty to the amount of €5,001.00. The enforcement of further damages is not affected.
(8) The HTML, JavaScript or other program code supplied to the customer by econda must be used for its intended purpose. In the event of any modification or other manipulation of the econda software program code made contrary to the intended use thereof, econda is entitled to extraordinary termination.
(9) If econda has protected the contractual products and/or services using technical means (e.g. firewalls or security keys), the customer is not permitted to remove or bypass these security measures.
(10) The customer shall take steps to protect its data and, in particular, shall make regular backups appropriate to the risk. If, during or after installation of the econda software, the customer ascertains that an error is occurring, he must abort installation immediately and take all appropriate steps and/or refrain from doing anything in order to minimize the damage as far as possible. In particular, he is obliged to inform econda of the error immediately.
(11) With regard to telecommunications and data transfers, the customer undertakes to observe the protocols or specifications as requested by econda and the instructions of econda.
6. INDUSTRIAL PROPERTY RIGHTS
(1) All copyright and other intellectual or industrial property rights to services developed or provided pursuant this agreement, in particular, rights to software, including source codes, databases, hardware or other material(s) such as functions, developments, documentation and report templates, and preparatory materials, remain solely with econda or its licensors. The customer is only granted a simple, nontransferable right of use and those authorizations which have been explicitly granted pursuant to these Terms and Conditions, other terms and conditions, or 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 modify or remove trademarks or distinguishing marks or other identifying features relating to copyright, the brand name or other intellectual property rights which are included in the contractual items and in the software, including references to the confidential nature and confidentiality of the software, or to modify or copy the software or parts thereof.
7. LIABILITY FOR DEFECTS AND GENERAL LIABILITY
(1) If the econda software or the centrally installed econda products or the econda measurement procedure are defective because their suitability for the contractual use is nullified to more than an insignificant degree, econda is liable for material defects and defects of title pursuant to the statutory regulations. For defects in software that existed upon the software being transferred to the customer, econda is only liable if it is responsible for these defects.
(2) The customer shall notify econda of any obvious defects immediately. Timely dispatch of this notice is sufficient for immediate notice. In such case, the customer is obliged to provide econda with all documentation required for analysis and remedying, and to permit and facilitate access to the customer’s servers where necessary.
(3) In accordance with legal regulations, econda is liable without limitation only for damages caused by willful intent or gross negligence on the part of the legal representatives or executive staff of econda, or by serious organizational fault, or if a guaranteed characteristic of econda products, of the software supplied or installed centrally, or of the econda measurement procedures are missing. This restriction does not apply to damages relating to loss of life, physical injury or harm to health; in such cases, econda is liable for any and all fault.
(4) Notwithstanding the legal basis, econda is furthermore liable only for damages caused by a culpable breach of a material contractual obligation on the part of legal representatives or agents of econda. Liability is limited to the amount of foreseeable, typical damages that econda could reasonably have anticipated upon conclusion of the contract based on the information available to it at that time.
(5) The above liability provisions also apply analogously in favor of the employees and officers of econda.
(6) Claims for damages from entrepreneurs which are based on a simple negligent breach of obligations on the part of econda cannot be enforced any later than one year after such are incurred.
(7) This restriction does not apply to loss of life, physical injury or harm to health. Otherwise, claims for defects expire in accordance with the statutory regulations.
(8) The availability of econda software is defined in separate SLAs as part of the relevant performance descriptions. econda is entitled to develop this further from time to time.
8. FORCE MAJEURE
(1) In the event that a party cannot provide a service due on the grounds of force majeure, this party is exempt from fulfillment of its service obligations for as long as the hindrance in question persists. The other party is exempt from its counter-obligations for this same period of time. Reciprocal claims for damages are not possible during this period.
9. TERMINATION/TERM OF CONTRACT
(1) The standard contractual term is generally 12 months, unless otherwise agreed for an individual contract.
(2) The contract will be renewed automatically by a further 12 months unless a contract party terminates the contract by giving at least 4 weeks’ notice before the respective end of the contract. Termination must be made in writing.
(3) The right to extraordinary termination is unaffected. econda is entitled, in particular, to terminate the contract extraordinarily if:
– the customer has failed to make an overdue payment despite the setting of a grace period and threat of contract termination;
– the customer presents extreme right-wing content on its website;
– insolvency proceedings are initiated against the customer’s assets or the initiation of such proceedings is rejected due to lack of assets;
– the customer breaches the Terms and Conditions.
(4) Prepayments will be reimbursed only if econda is responsible for extraordinary termination.
(5) Upon the contract ending, econda is entitled to permanently erase all data saved during the term of the contract.
(6) Upon the contract ending, the customer is obliged to erase all copies of the econda code (code provided by econda which is integrated into the customer’s online presence, and in particular which triggers transfer or data to or data requests from the econda server(s)) which are in his possession. If the econda code, or parts thereof, are not removed from the customer’s online presence (this is the case, in particular, if the customer’s presence is still transmitting data or data requests to the econda server), then contract data processing is still being performed within the meaning of Article 28 GDPR. econda is furthermore entitled to demand the fee due as agreed with the customer for the duration of and until such time as the econda code is removed from the customer’s website in full.
10. FINAL PROVISIONS
(1) The sole place of jurisdiction for any disputes arising from this contract is Karlsruhe, Germany – provided that the customer is a merchant. The same applies if the customer does not have a general place of jurisdiction in Germany, or if he transfers his residence or usual place of residence outside of this legal jurisdiction, or if his place of residence or usual place of residence is unknown when a suit is filed.
(2) Contracts concluded by econda on the basis of these Terms and Conditions and claims of any kind arising therefrom are subject exclusively to the law of the Federal Republic of Germany under exclusion of the provisions of the UN CISG and under exclusion of German private international law.
(3) Should provisions of these Terms and Conditions and/or the contract be or become ineffective, this will not affect the validity of the other provisions.
Last updated May 2018
