General Terms and Conditions (GTC)
and its clients for the supply of archiving software (hereafter: software) and/or offering its respective services, especially providing computer programs and updates/upgrades and performing related services.
These Terms shall apply equally to entrepreneurs and consumers.A consumer in the sense of Section 13 of the German Civil Code [Bürgerliches Gesetzbuch] is any natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession.An entrepreneur in the sense of Section 14 of the German Civil Code is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
Should the client be an entrepreneur in the sense of Section 14 of the German Civil Code, these Terms shall, conditional upon changes by ecoDMS, also apply to any future contracts between ecoDMS and the client without further reference to them.
In addition to these Terms, the EULA (End User License Agreement) and the SLA (Service Level Agreement) for the respective product shall apply to the use of any products or services provided to the client.
These Terms shall apply exclusively. Terms contrary to these Terms or general terms and conditions of the client deviating from these Terms shall not be recognized by ecoDMS, unless the Parties conclude a separate written agreement for their applicability.
§1 Contract Object
The object of contracts concluded between the client and ecoDMS
- the transfer of the respective software is offered by ecoDMS in electronic form, including the databases contained therein, the related user documentation and according products and services while granting usage rights within an agreed extent and further specified in these GTC,
- the providing of the services is offered additionally by ecoDMS (hotline, advice, user support, etc.) to the extent agreed to and regulated by these GTC.
The client shall not obtain any intellectual property rights to any of the provided software. The source code of software is not part of the provided software.
The product description on the ecoDMS website shall be decisive for determining the characteristics of the software provided by ecoDMS. ecoDMS shall owe no further characteristics for the software. The client may especially not derive any further characteristics from other depictions of ecoDMS software in public statements or advertisement by the seller and/or ecoDMS, its employees or distribution partners, unless ecoDMS expressly confirms these further characteristics in writing.
Should ecoDMS employees and/or distribution partners and resellers provide guarantees prior to contract conclusion, such guarantees shall only be effective if confirmed by ecoDMS's management in writing.
The respective product description on the ecoDMS website (support packages) shall be decisive in determining the extent of the services to be provided by ecoDMS.
Installation of the provided software shall not be part of the contract. ecoDMS shall refer to the installation instructions. This shall especially also apply to the hardware and software environment in which the software is used. The software is only compatible with operating systems approved by ecoDMS. A list of approved operating systems is published by ecoDMS at "www.ecodms.de
" and shall therefore be considered essential components of the respective contract.
Unless resulting otherwise from the ecoDMS product description(s) and these GTC, the client shall receive no additional support services, such as updates to acquired ecoDMS software or individual user support by ecoDMS.
§2 Contract Conclusion
The software products and additional services described in the ecoDMS online shop do not constitute binding offers by ecoDMS, but are provided to receive binding orders submitted by clients.
Clients may submit offers through the order process provided on the ecoDMS online shop. After placing the selected product in his virtual shopping cart and going through the electronic order process, the client may submit a legally binding contract offer for the goods in his shopping cart by activating the button that completes the order process.
ecoDMS may accept the client's offer within five days
- by sending the client an order confirmation in writing or in text form (fax or email) for which the receipt of the order confirmation by the client shall be decisive, or
- by ecoDMS providing the client with the ordered software for which the receipt by the client shall be decisive, or
- by ecoDMS requesting payment from the client after submission of his order.
Should several of the above-stated alternatives be present, a contract shall be concluded when one of the above-stated alternatives first occurs. Should ecoDMS not accept the offer of the client within the above-stated period, this shall be considered as a rejection of the offer with the consequence that the client shall no longer be bound to his declaration of intent.
The acceptance period for the offer shall commence on the day after the submission of the offer by the client and shall end with the expiration of the fifth day following the submission of the offer.
When submitting an offer through the ecoDMS online order form, the text of the order will be saved by ecoDMS and sent to the client with the order confirmation. These GTCs and the notice of withdrawal shall be provided to the client again separately in text form with the invoice (e.g., by email, fax or letter).
Prior to submission of a binding order via the ecoDMS online order form, the client may recognize entry errors by carefully reading the information on the monitor. An effective technical aid for better recognition of entry errors may be the browser's zoom function which will enlarge the text displayed on the monitor. The client may correct his entries in the electronic order process by using regular keyboard and mouse functions until he activates the button that completes the order process.
Contracts may only be concluded in German or English.
Order processing and contacting shall generally be performed by email and automated order processing. The client must ensure that the email address provided by him for order processing is accurate, so that emails sent by ecoDMS can be received by this address. Especially when using SPAM filters, the client must ensure that he can receive any emails sent by ecoDMS.Contract Conclusion Outside of the Online Shop
Certain products and services offered by ecoDMS are only aimed at entrepreneurs in the sense of Section 14 of the German Civil Code. Contracts for such products and services may also be concluded outside of the ecoDMS online shop. A contract shall be concluded
- through the client accepting an offer (text form shall be sufficient) submitted by ecoDMS in writing or in text form (fax or email), or
- through ecoDMS sending a written order confirmation or an order confirmation in text form (fax or email) to the client for an order submitted outside of the online shop (text form shall be sufficient) for which receipt of the order confirmation by the client shall be decisive, or
- through ecoDMS providing the ordered software to the client for which receipt by the client shall be decisive or
- through ecoDMS requesting payment from the client after submission of his order.
Order processing and contacting shall generally be performed by email and automated order processing. The client must ensure that the email address provided by him for order processing is accurate, so that emails sent by ecoDMS can be received by this address. Especially when using SPAM filters, the client must ensure that he can receive any emails sent by ecoDMS.
§3 Notice of Withdrawal
If the client is a consumer in the sense of Section 13 of the German Civil Code, the client shall be instructed about his legal withdrawal rights under the EU Consumer Rights Directive for contracts on the supply of digital contents and for contracts and providing services as follows (may also be retrieved at: www.ecodms.de/index.php/en/right-of-withdrawal
Consequences of Withdrawal:When you withdraw from this contract, any payments that you may have made to us, including the delivery charges (with the exception of any additional costs of delivery of any type that you may choose rather than the standard delivery offered by us), shall be paid back to you within fourteen days of the day we received your notice of withdrawal from this contract. For this repayment, we shall use the same mode of payment that you used for the original transaction, unless agreed to otherwise with you in writing. Under no circumstances shall we charge you any fees for this repayment.In case of a service contract:Should you demand that services commence during the withdrawal period, you will be charged an appropriate amount in proportion to the extent of the services provided until you notify us of your withdrawal from this contract in comparison to the full coverage of the contract.Right of Withdrawal ExpirationPursuant to Section 356(4) of the German Civil Code, the right of withdrawal from a contract for the delivery of services shall expire even when the contractor has rendered the service in its entirety and has begun with the execution of the service only after having received explicit approval from the consumer who simultaneously confirms his awareness that he will lose his right of withdrawal upon complete fulfillment of the contract by the contractor.Pursuant to Section 356(5) of the German Civil Code, the right of withdrawal from a contract for the supply of digital content that is not loaded onto physical data carriers shall expire even if the contractor has commenced execution of the contract, after the consumer
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- has expressly agreed that the contractor may begin with the execution of the contract before the end of the withdrawal period and
- has confirmed his awareness that he will lose his right of withdrawal upon complete fulfillment of the contract.
§4 Information on Online Arbitration under the ODR Regulation (EU) No. 524/2013
Should the client be a consumer in the sense of Section 13 of the German Civil Code ("a consumer is any natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession"), the client shall receive the following notification:
Under the following link, the EU Commission provides a platform ("OS platform") for online dispute resolution: http://ec.europa.eu/consumers/odr/
. This platform serves as a point of contact for out-of-court settlement of disputes that arise from online purchasing or service contracts that involve a consumer. The seller is neither required nor willing to participate in a dispute resolution procedure before a consumer arbitration center.
§5 Special Provisions for Resellers
If software is provided to commercial resellers who must be registered at ecoDMS as resellers, the reseller may provide the license to a third party to the agreed extent. In case of a resale, the serial numbers issued by ecoDMS (e.g., licensing numbers, OTCs or access data) must be stated on the invoice.
The reseller may not grant other or further rights to the products and/or services to his clients than the rights permissible under these Terms and the EULA.
The reseller may not fully or partially reproduce the products and/or services, not even for data backup purposes.
For providing the software and granting the required usage rights, ecoDMS shall receive a flat fee whose amount shall be determined by the respective product description.
For providing the additional services offered by ecoDMS, ecoDMS shall receive compensation to be determined by the respective product description.
The prices stated by ecoDMS are net prices and include legal VAT.
Several payment options are offered to the client and stated on the ecoDMS online shop.
If advance payment by transfer was agreed to, the payment will become due immediately after the contract is concluded, unless the Parties agree to a later due date. If advance payment by credit card is agreed to, the client's credit card account will be charged immediately after the contract is concluded, unless the Parties agree to a later due date.
When selecting the payment type "PayPal," payments will be made through the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg in accordance with the PayPal User Agreement which can be found under https://www.paypal.com/us/webapps/mpp/ua/useragreement-full
In case of default, the statutory regulations on default shall apply.
The handover of the main program to the client shall occur exclusively by the client downloading a digital copy of the ecoDMS software from the ecoDMS website and saving the file onto a storage location selected by him.
To use every function, the client must acquire a license from ecoDMS or from an authorized dealer/reseller. ecoDMS shall send the licensing key to the client by email. The licensing key provided by ecoDMS must either be activated online via the ecoDMS website or directly through the ecoDMS software. During activation, information about the hardware of the computer on which the ecoDMS server is installed will be transferred in addition to the licensing information.
For free versions of the software only provided for download to consumers in the sense of Section 13 of the German Civil Code, the respective license shall already be included in the data downloaded from the ecoDMS website. Entrepreneurs in the sense of Section 14 of the German Civil Code shall have the opportunity to use a trial version of the software free of charge which may merely be employed as a limited/temporary version prior to its acquisition or granting of the license.
For the installation of the software, ecoDMS shall refer to the installation notices in the product description, especially for the hardware and software environment which the client must have.
To meet delivery deadlines, the time at which the software is provided to be retrieved online and the client is notified of this by ecoDMS shall be decisive.
As long as ecoDMS is hindered ("force majeure") from providing its services due to strikes or lockouts at third-party or ecoDMS operations (though, in the later case, only if the labor dispute is legal), intervention by officials, statutory prohibitions or other circumstances for which ecoDMS is not responsible, the delivery and service period shall be extended for the duration of the hindrance and for an appropriate period after the hindrance is removed ("downtime"). No breach of duty shall occur during downtime. ecoDMS shall notify the client without delay of any such hindrances and of their projected duration. Should the force majeure continue uninterrupted for more than 3 months, both Parties shall be released from their service obligations.
§8 Usage Rights
ecoDMS shall grant the client the simple, transferrable right to use the software in the agreed hardware and software environment for private and/or business purposes without temporal limitations.
The license number, the version and the extent of the license (number of licenses) may be found in the email in which the licensing key was sent. The license number and the version may also be viewed through a function in the program. The granted license shall always refer to a previously defined licensee and is intended to be saved/used on a computer that may be accessed to the agreed extent by individual users. Simultaneous saving, storing or use on more than one computer shall not be permitted. Should the client wish to use the software on several computers simultaneously, such as at several branch offices, he must acquire an according number of licenses.
No editing rights shall be granted to the client.
Renting the software shall not be permitted.
The client may not remove and/or alter any existing copy protection.
The client must take appropriate technical and organizational measures to ensure that the software will be used according to its intended use.
The client may make a copy of the software for backup purposes. Reproduction of the software for an orderly data backup is part of its intended use.
Should the client exercise his right to transfer his usage rights to a third party, he must also subject the third party to his contractual obligations. The usage rights of the client shall expire with the transfer. Any existing copies of the software must be deleted.
Under Section 158(1) of the German Civil Code, rights granting shall only come into effect after the client pays the required compensation in full.
Should the client seriously infringe on the agreed usage rights, ecoDMS may extraordinarily terminate the usage rights granted for the affected software. However, this shall require ecoDMS to have provided an unsuccessful warning with an appropriate grace period.
In case of termination, the client must delete all of his copies of the software and confirm having done so to ecoDMS in text form upon request.
Further statutory and contractual regulations shall remain unaffected.
The above-stated regulations on rights granting shall apply accordingly to free versions for consumers in the sense of Section 13 of the German Civil Code and, if used free of charge, to trial versions for entrepreneurs in the sense of Section 14 of the German Civil Code.
Should the software refer to third-party licenses, these components shall be noted during the installation process and/or as a text file with the software.
§9 ecoDMS Printer Client (PDF/A Printer)
The ecoDMS Printer Client uses the following open source components: GPL Ghostscript 9.02 (http://www.ghostscript.com
). The ecoDMS Printer Client is subject to the GNU GPLv2 (General Public License, version 2) to be noted here. The source code may be requested from the author. The terms of GPLv2 may be found at http://www.gnu.org/licenses/gpl-2.0.html
. Programs started through the printer driver are not subject to GPLv2.
§10 Client Obligation to Cooperate
The client has informed himself about the essential functional characteristics of the ecoDMS software and shall bear the risk of whether it meets his expectations. If in doubt, ecoDMS recommends that the client seek advice from ecoDMS employees or competent third parties prior to contract conclusion.
The client shall be solely responsible for establishing a functional-and, also in consideration of the additional burden by the contractual object, sufficiently dimensioned-hardware and software environment for the contractual objects. The same shall apply to appropriate provisions in case the software fails to work fully or partially (e.g., by performing daily data backups, error diagnoses, regular data processing results reviews and safekeeping digitized documents to allow simple reconstruction of any lost data).
The client shall install the software at his responsibility and expense. This shall also apply if certain updates/upgrades and releases require the software to be re-installed during the agreed licensing period. The client shall follow the notices provided by ecoDMS for the installation and operation of the software; he shall regularly visit the websites accessible through the Internet to inform himself about current notices and consider them when operating the software.
In accordance with sales law regulations, ecoDMS must guarantee that the provided software meets the agreed characteristics. Should the software be defective, the statutory regulations of Section 434 et seq. of the German Civil Code shall apply. However, they shall not apply if the client changes the provided software or has it changed by third parties and if the client cannot prove that a defect did not occur due to the changes.
Should the client discover an error/defect in the provided software, he may report this to ecoDMS using their published contact details or via www.ecodms.de/index.php/en/support/error-tickets
and receive support. However, the latter case shall only be subject to the regulations of the guarantee if the reported error is a software error/defect that was not caused by third-party software, a user error, incorrect installation or the like. A fee will be charged for non-software error/defect support.Additional Services
ecoDMS shall provide guarantees if a guarantee is not already included with the provided software, according to service contract law regulations for support/hotline questions, according to work and labor contract law for software adjustments and troubleshooting and according to sales law regulations when providing updates and upgrades. ecoDMS shall guarantee that its services are performed according to contract and, especially,-if service contract law is not applicable-without defects.Free Products and Services
Except for the functionality of the software, no guarantee shall be provided for the products and services provided by ecoDMS free of charge. Liability for damage compensation or reimbursement of comparable expenses shall follow § 12 of these Terms. ecoDMS shall reserve the right of defense of contributory fault.
If the client is an entrepreneur (Section 14 of the German Civil Code), the special regulations of § 13 of these Terms shall also apply.
Liability for simply (slightly) negligent breaches of duty shall be excluded, except for essential contract duties or guarantees, injuries to life, the body or one's health and if claims under the German Product Liability Act [Produkthaftungsgesetz] remain unaffected.
In case of loss of data for which ecoDMS is responsible, ecoDMS shall only be liable for the costs of the reproduction of the data for the backup copies to be created by the client and for the restoration of the data that would also have been lost if the data had been secured properly. Apart from that, statutory regulations shall apply.
The above-stated regulations shall also apply to the managing directors, legal representatives, employees and other vicarious agents of ecoDMS.
If the client is an entrepreneur (Section 14 of the German Civil Code), the special regulations of § 12 of these Terms shall also apply.
§13 Special Regulations for Entrepreneurs (Section 14 of the German Civil Code)
If the client is an entrepreneur, the statute of limitations for any guarantee claims (§ 10) shall be one year and commence with the delivery or providing (as well as notifying the client) of the contractual objects or the performance of the service. The same statute of limitations shall apply to any other claims of any kind against ecoDMS.
In case of intent or gross negligence, fraudulent concealment, personal injuries, defect claims in the sense of Section 438(1) No. 1a of the German Civil Code and for guarantees (Section 444 of the German Civil Code) and claims under the German Product Liability Act, the statutory statute of limitations shall apply.
If the client is an entrepreneur, he shall, in accordance with Section 377 of the German Commercial Code [Handelsgesetzbuch], assume (without delay) the inspection and reporting obligations for any deliveries and services by ecoDMS for the implementation of the contract.
Should ecoDMS perform services when searching for or remedying errors without being required to do so, ecoDMS may charge a fee in compensation in accordance with its regular rates. This shall especially apply to defects that cannot be demonstrated or attributed to ecoDMS.
If the client is an entrepreneur, ecoDMS shall provide damage compensation for all cases of contractual and non-contractual liability according to the following limitations:
- In case of intent or lacking characteristics for which ecoDMS provided a guarantee, in full;
- In case of gross negligence, only for foreseeable damages that were supposed to be prevented by the duty that was breached;
- In other cases: Only for breaches of essential contractual obligations, but always for the amount of foreseeable damages. "Essential contractual obligations" are obligations that protect the contractual legal positions of the client which the contract must grant him under its purpose; furthermore, contractual obligations whose fulfillment make orderly contract implementation possible and on whose adherence the client may regularly rely are essential;
- Apart from that, if ecoDMS is insured against the damages, under its insurance coverage and conditional upon insurance payments.
These liability limitations shall not apply to liability for personal damages or to liability under the German Product Liability Act.
If the client is an entrepreneur, the sole place of jurisdiction for any disputes arising from or in relation to the contract shall be the registered office of ecoDMS. However, should ecoDMS sue, it may also file suit at the location of the client. The right of both parties to interim relief for seeking redress in court in accordance with statutory regulations shall remain unaffected.
If the client is an entrepreneur, he may only offset claims of ecoDMS with legally established or undisputed claims.
. Apart from that, information on data collection or data processing by ecoDMS shall be provided through separate declarations.
§15 Final Provisions
Changes and additions to the contract must be issued in writing. Oral side agreements shall not be concluded. General terms and conditions of the client shall not be part of this contract and shall have no validity for the contractual relationship.
German law (of the Federal Republic of Germany) shall apply exclusively under exclusion of the UN Convention on the Sale of Goods (CISG). However, this governing law shall only apply to consumers (Section 13 of the German Civil Code) insofar as the provided protection is not revoked by relevant statutory regulations of the state in which the consumer has his habitual residence.
Should a regulation of the contract or a subsequently added regulation prove to be fully or partially invalid or should a gap be discovered in the contract or in its additions, the validity of the remaining regulations shall remain unaffected. The Parties are aware that a severability clause may merely reverse the burden of proof. Nonetheless, it is the express will of the Parties to uphold the validity of the remaining contractual regulations under any circumstances and to thereby waive Section 139 of the German Civil Code. Instead of the invalid regulation or to fill the gap, an effective and enforceable regulation shall be concluded that most closely approximates what the Parties intended or would have wanted legally and economically in accordance with the purpose of the contract and its subsequent additions if they had thought of this point during contract conclusion. Should the invalidity of the regulation be due to a measure of performance or time specified therein (period or date), a regulation shall be concluded that most closely and approximates the original measure to the legally permissible extent.
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