GENERAL BUSINESS TERMS AND CONDITIONS
GENERAL BUSINESS TERMS AND CONDITIONS FOR ECONDA SOFTWARE
(1) econda GmbH, hereinafter referred to as “econda”, will supply all goods and services exclusively in accordance with these Business 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 provided specifications for its services on its website, including an SLA for its software application. The customer could access these specifications of services to ascertain whether econda software is suitable and practicable for its purposes and intentions.
(3) econda is entitled to make amendments and variations to its service offering, provided that the purpose of the contract for the customer is not compromised or only to a minor degree. This also includes in particular enhancements to the software and extensions to the functional scope.
(4) These terms and conditions 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.
(5) econda is entitled to make amendments or additions to these General Business Terms and Conditions. Notification of this is given by changes made on www.econda.de. If a customer does not object to the amended or added terms and conditions within 4 weeks of them being announced, the amended or added terms and conditions will be valid. If the customer does object within the specified period, econda is entitled to terminate the agreement on the date when the amended or added terms and conditions were due to come into force.
(6) econda is entitled to use the services of third parties (subcontractors) to fulfil its contractual obligations.
- OFFER TO ENTER INTO A CONTRACT AND CONCLUSION OF CONTRACT
(1) All offers issued by econda are non-binding.
(2) The contract will come into force when econda accepts the customer’s application or when econda provides a service for the first time.
(3) The customer guarantees 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 undertakes to inform econda without delay of any changes regarding this information.
- PRICES, TARIFF CHANGES and TERMS OF PAYMENT
(1) The prices and terms of payment for the services used by the customer appear in the relevant quotations and valid lists of rates. Prices are understood, unless otherwise specified in the relevant quotations and lists of rates, to be exclusive of VAT. Service charges are due for payment upon receipt of the invoice.
(2) A change to the tariffs offered by econda at any given time to a tariff incurring a higher monthly charge is possible at any time. The desire to make this change must be indicated in writing and requires written confirmation from econda to become effective. The tariff change is binding. Any user fees not used at the old tariff will be offset against the charges at 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 notification being given. The contractual relationship will then continue based on the new terms/prices. If the customer objects within the specified time, both parties are entitled to terminate the contract with a period of 4 weeks’ notice.
(4) If there is a delay in payment, econda will charge statutory late-payment interest. If there is a delay in payment, econda is furthermore entitled to stop providing the services. During this period when access to the services is barred, the customer is still obligated to pay the agreed charges.
(5) The customer can offset receivables from econda only if counterclaims have been acknowledged in court or are uncontested. The customer can only exercise the right of retention if its counterclaim is based on the same contractual relationship. Any assignment of the customer’s claims against econda to third parties is prohibited.
(6) The customer’s non-use of the contractual services does not absolve the customer from its payment obligations.
(7) As regards payments made by direct debit, econda will charge 20 euros per returned direct debit provided that the customer is responsible for it; the customer must otherwise prove that the loss was for a considerably lower amount or did not occur at all.
- DATA PROTECTION AND CONFIDENTIALITY
(1) During the contractual relationship and without additional express consent being given, the customer’s personal data will be collected, processed, and used exclusively for the purposes of executing the contract, which includes billing. The collection, use, and processing of data is performed electronically.
(2) econda ensures that the data provided 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 the customer’s attention to the fact that data protection and data security cannot be guaranteed for transferring data in open networks such as the Internet, using the latest state-of-the-art technology. The customer is aware 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 are technically able to engage in intrusion in network security without authorization and to monitor message traffic. The customer alone bears complete responsibility for the security and backup of data that it has transferred to the Internet and stored on web servers. With regard to its end customers, the customer undertakes, under its own responsibility, to observe and comply with data protection regulations.
(4) A written agreement is required under Section 11 of the German Federal Data Protection Act (in German: BDSG) for processing personal data on behalf of a customer (“order data processing”). econda provides its customers with a standard contract template for a supplementary agreement. Customers can obtain more information at firstname.lastname@example.org.
- 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 in the following manner.
(2) The online connection is established at the instigation and cost of the customer. It also bears the costs for the terminal devices and the telecoms charges.
(3) The customer undertakes to handle in strict confidence the passwords received from econda for accessing its software and inform econda immediately as soon as it becomes aware that the password is known to any unauthorized third party. If, through the customer’s fault, a third party uses econda’s services by using the passwords, the customer is liable to econda for any usage charges and for compensation.
(4) The customer may not reproduce the documentation in any conceivable way. The customer may not grant third parties access to the econda software. The customer is not permitted
- with regard to the econda software or documentation, to make any amendments, carry out translations, convert it back to its source code, carry out decompilation or disassembly or produce works derived from this; information, as specified in Section 69 e of the German Copyright Act, which is required to create the interoperability of computer programs developed independently of each other using the software, may be obtained on request from econda against payment of the currently valid prices charged by econda;
- to transfer, loan, lease, sell or use to provide services to or for third parties, grant rights to the software or documentation in any form to third parties, unless it has obtained prior consent to this in writing from econda, paid any relevant charges and fulfilled all the other requirements of econda; or
- to remove, modify or make illegible names, labels or markings relating to the copyright and other intellectual property rights of the software or documentation.
(6) In the event of any infringement, econda is entitled to extraordinary termination.
(7) For every infringement committed, the customer is obliged to pay econda a contractual penalty amounting to EUR 5,001.00. The assertion of further claims for compensation remains unaffected by this.
(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 the security measures.
(10) The customer must implement measures to protect its data and, in particular, make regular backups commensurate with the risk. If, during or after installation of the econda software, the customer realizes that an error is occurring, it must abort the installation immediately and take all the appropriate measures and/or refrain from doing anything to minimize the loss as far as possible. In particular, it is obliged to inform econda immediately about the error.
(11) With regard to telecommunication and data transfers, the customer undertakes to observe the protocols and specifications required by econda and the instructions given by econda.
- INTELLECTUAL PROPERTY RIGHTS
(1) All copyright and other intellectual or industrial property rights to services developed or provided as per this agreement – especially rights to software, including 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 Business 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 modify or remove trademarks or badges or other distinctive features relating to copyright, the brand name or other intellectual property rights that are part of the contractual items and contained in the software, including references to the confidential nature and confidentiality of the software, or to modify or copy the software or parts thereof.
- 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 does not apply to more than merely an insubstantial degree, econda is liable under legislation for material and legal defects. As regards software defects that were already present when it was handed over to the customer, econda is liable only if it bears responsibility for said defects.
(2) The customer must inform econda immediately about any obvious defects. Timely dispatch is sufficient to keep the deadline. The customer must in this case provide econda with all the material required for carrying out the analysis and troubleshooting and, if necessary, facilitate and grant access to the customer’s servers.
(3) In accordance with legal regulations, econda is liable only for those losses (without limitation of the amount of loss) caused either by willful intent or gross negligence of the legal representatives or executive staff of econda, or by serious organizational fault; or if a warranted characteristic of econda products, the supplied or centrally installed software, or the econda measurement procedures are missing. This restriction does not apply to losses associated with any fatal injury, physical injury or impairment of health; in these instances, econda is responsible for any valid claims.
(4) Furthermore, irrespective of the legal grounds, econda is liable only for those losses 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, typical losses that econda could reasonably anticipate based on the information available at the time, upon conclusion of the contract.
(5) The aforementioned liability provisions also apply correspondingly in favor of the employees and authorized representatives of econda.
(6) As regards any negligent infringement of duty by econda, an entrepreneur can only assert claims for damages within one year of the loss having occurred.
(7) This restriction does not apply to losses associated with any fatal injury, physical injury or impairment of health. In addition, the statute of limitations for warranty claims is determined by legal regulations.
(8) The availability rates of the econda software are defined in separate SLAs as part of the relevant specifications of services. econda is entitled to develop this further from time to time.
- FORCE MAJEURE
(1) In the event that a contractual party cannot provide a service due to force majeure, said party is exempted from fulfillment of its service obligations 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 this period.
- TERMINATION OF CONTRACT/CONTRACTUAL TERM
(1) The standard contractual term is usually 12 months, unless otherwise agreed for an individual contract.
(2) The contract will be extended automatically by another 12 months unless a contractual party terminates the contract at least four weeks before the current term ends. Termination must be submitted in writing.
(3) The right to extraordinary termination remains unaffected. econda has a particular right to terminate the contract extraordinarily if
- the customer has failed to make an overdue payment despite a deadline and threat of contract termination,
- the customer presents extreme right-wing content on its website,
- 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 Business 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 is entitled to permanently delete all data stored during the term of the contract.
(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 – this is particularly the case if the customer’s site continues to transmit data to econda servers – econda is entitled to charge the fee agreed to by the customer until the econda tracking code is removed from the website.
- 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 will apply if the customer does not have any general place of jurisdiction in Germany, or transfers its residence or usual whereabouts outside of this legal jurisdiction, or if its place of residence or usual whereabouts is unknown when a lawsuit is filed.
(2) The law of the Federal Republic of Germany will apply exclusively to all contracts concluded by econda on the basis of these General Business Terms and Conditions and to all claims resulting from said contracts, regardless of type, to the exclusion of the provisions regarding the uniform United Nations Convention on Contracts for the International Sale of Goods and to the exclusion of private German international law.
(3) Should a provision in these General Business Terms and Conditions and/or the contract be or become invalid, this will not affect the validity of the other provisions.
Status: November 2016