The following GTCs of efcom gmbh (efcom) apply to all offers, orders and deliveries made by efcom notwithstanding any conflicting terms and conditions of the Client.
2. Conclusion of the contract
Offers issued by efcom are non-binding and subject to change. A contract with efcom only comes into effect upon efcom issuing a written declaration of acceptance (order confirmation). In the event of non-performance of the contract for reasons for which the Client is responsible, efcom may charge 15% of the order value unless the Client proves that the amount of damage suffered is lower.
3. Software/copyright/usage rights/license fees
The Client may use the software programmes (hereinafter referred to as software) produced by efcom which are listed in the order confirmation subject to the following conditions:
By accepting a licence contract, the Client shall pay a one-off license fee in accordance with efcom’s applicable price list taking into account the conditions of the respective order confirmation.
No ownership is acquired with the delivery and payment of the software, only the non-exclusive right to use the software for an indefinite period. Full particulars are given in the software license contract.
The Client’s rights to use the software:
The Client is entitled to use the software within the scope of the order confirmation for a restricted number of users pursuant to the license contract.
efcom’s explicit consent is required to use efcom products within the framework of multi-layer client/server architectures (e.g. via an application server with access to the DBMS). Special conditions and license terms apply.
The Client may only duplicate the software in a machine-readable or printed form for backup purposes. Transfer and disclosure to third parties is prohibited. In this sense, third parties also include subsidiaries or affiliates of the Client. The Client may only use the duplicate if the original can no longer be used owing to damage or destruction. Technically required automated duplication (loading, running and backup, etc.) within the scope of intended use according to the descriptions contained in the documentation is permitted.
Pursuant to Section 69e of the German Act on Copyright and Related Rights (UrhG), decompilation of the software is only permitted without requiring the authorisation of efcom subject to the stringent requirements set out in that section of the Act. However, pursuant to Section 69e(1)2. UrhG efcom will make the information required to achieve interoperability readily available to authorised persons pursuant to Section 69e(1)1. UrhG who shall communicate with efcom directly regarding the matter.
With the exception of the provisions of Section 69e UrhG, the software may not under any circumstances be disassembled, reverse-assembled, decompiled, reverse-compiled, reverse-translated or otherwise decoded.
The Client may not change labels, copyright or other notices, or ownership information of the producer or efcom in the software or documentation.
4. Delivery/transfer of risk/acceptance
Delivery is subject to the retention of title. The right to use the software pursuant to section III, para 3 only transfers to the Client upon full payment of the sale price.
efcom is entitled to provide partial services and is not obliged to install the software. If the Client purchases the software according to the price list, including the documentation, performance is fulfilled upon delivery of the software on data carriers including the license code. Variations from the offer of products or services delivered or rendered are permitted, provided that the products or services delivered or rendered include the functionality of the ordered software or promised service. The scope of the delivery obligation is governed exclusively by the order placed with efcom and the delivery contract or the relevant order confirmation and these GTCs.
In the event of a failure to meet a delivery or performance deadline owing to force majeure, the delivery or performance deadline will be extended appropriately. Force majeure includes in particular war, civil unrest, acts of terrorism, seizure or other official decrees, lock-outs or other industrial disputes as well as the lack of suitable materials, machine damage, machine breakage or other operational disruptions, natural phenomena or other circumstances beyond efcom’s control or which can only be remedied with unreasonable expenditure.
In the event of a failure to meet the deadline for other reasons, the Client shall grant an extension in writing of at least 3 weeks under threat of refusal of acceptance. If the deadline expires without fulfilment of the obligation, the Client may withdraw from the contract with regard to the delivery or service in default. After expiry of the 3 week deadline without objection, withdrawal from the contract is precluded.
If efcom defaults on a part of the delivery or service due, or if it becomes impossible to supply part of the delivery or service, under these terms and conditions the Client may only withdraw from the entire contract or demand compensation if partial fulfilment is of no interest to them.
efcom may withdraw from the contract if the export or import documents required for delivery to the Client are not provided.
Shipping and delivery is at the Client’s cost; efcom may choose the carrier.
Risk transfers to the Client once the products are dispatched. This also applies if freight-free delivery has been agreed upon. If efcom stores the products separately for the Client, the Client shall collect the products. In this case, risk transfers to the Client upon notification of availability.
If efcom installs the software at the Client’s premises, efcom will notify the Client upon completion of the installation work that the installed products are ready for acceptance. The Client shall accept the installation immediately after this notification. If the Client does not accept the installation within 2 days following this notification, or if the Client uses the installed software without a corresponding declaration of acceptance, acceptance will be deemed to have taken place. Errors that do not materially affect the operability of the installed software, especially main software functions, do not entitle the Client to refuse acceptance. The Client’s right to request efcom to rectify these errors remains unaffected.
Returns, regardless of the legal grounds, must be registered with and approved by efcom by telephone. The returns authorisation number must be marked clearly on the return package. Returns without a returns authorisation number will be declined and returned to the sender at their own cost.
We charge a test fee plus shipping costs for all software trials. Upon acceptance of the product, the test fee will not be added to the value of the products. If the product is not accepted, the trial software must be deleted within 8 weeks and efcom given written confirmation that this has taken place.
5. Client obligations
The Client shall make all preparations required for the set up and installation of the software. In addition, the Client shall at no cost enable efcom to go about its required activities at the Client’s premises, specifically:
provide appropriate workspace for efcom’s employees;
grant efcom’s employees unimpeded access to computers and servers necessary to perform the work;
ensure the technical environment conforms with the software and is functional;
provide and obtain test data and all other information and resources required for efcom employees to perform their work;
offer on-going disclosure of the desired methods and procedures for data processing;
create backups of data and files affected by the installation at the beginning of and on an on-going basis during installation.
Unless otherwise agreed, efcom’s prices are ex works Neu-Isenburg, Germany, plus Germany’s prevailing statutory rate of VAT. Data carriers and shipping costs are charged separately in each case; data carriers will only be charged for if they are not already part of the scope of delivery. Unless explicitly agreed upon in writing, payment is due within 10 days net of the invoice date without deductions of any kind. If the Client causes a delay in the delivery, payment will be due when the products are ready for shipment.
If the Client defaults on payment, efcom is entitled to demand late payment interest of 8% above the German Bundesbank base rate pursuant to Section 1 DÜG (German Discount Rate Transition Act) of 9 June 1998 (German Law Gazette I p.1242). Late payment interest will be calculated from the time the Client is in default. efcom will charge a flat rate fee of €15 for each reminder.
Shipments with a value of up to €1,000 as well as initial deliveries to new Clients will generally be due for payment upon receipt by cash on delivery.
The Client may only set off against counterclaims if these claims are undisputed or have been declared final and absolute. The Client may only assert a right of retention because of a counterclaim insofar as their counterclaim and efcom’s pecuniary claim are based on the same contractual relationship.
The Client shall inspect the invoice without delay, at the latest within 7 days, of receipt and, if necessary, submit a complaint to efcom’s accounts department. Should the Client fail to do so, the Client will be prohibited from exercising the right of retention in respect to their payment obligations when the invoice becomes due. efcom will review such complaints and, if applicable, will issue a credit to the Client.
During the maintenance period for which the Client has paid maintenance fees, efcom will provide or send to the Client all new versions, corrections, enhancements and improvements to the software and related documentation at the time of official release or publication, or if an order is placed by the Client. During the support period for which the Client has paid support fees, the Client may call efcom customer service for support in identifying and resolving any issues that may arise when using the software. efcom will respond to the Client’s service requests as quickly as possible and will take reasonable efforts to resolve all errors reported by the Client, provided that the conditions that led to an error can be understood and the causes and effects recognised by efcom. If the error is not due to the software or is the result of negligence or modification by the Client, the Client will be invoiced and they shall agree to pay all reasonable and documented travel and accommodation expenses as well as customer service fees. The maintenance service does not include any new software products or options sold separately by efcom.
efcom offers a 12 month warranty on the products supplied by efcom commencing on the date of acceptance of the products or, if they were installed by the Client themselves, starting from the delivery date of the products. The delivery of updates does not extend the warranty period.
If the Client has justified complaints about the products (e.g. reproducible software errors that materially affect the value or suitability of efcom products), efcom shall remedy the reported defects by a means of its choosing. These means include either by rectify the defects for free, providing a workaround or replacing the defective products free of charge. The Client may only demand a reduction of the agreed license fee or the cancellation of the respective license contract if efcom is unable to resolve the defects after a minimum of two attempts. Any further liability of efcom, in particular for defects not resulting from the delivered products, is excluded unless efcom explicitly assured the Client of the absence of such defects or efcom or a subsidiary are culpable of gross negligence and intent. Furthermore, efcom assumes no warranty obligation, particularly any assurance that efcom products meet the specific requirements of the Client and are of economic benefit to them or that the products will work without error in the combination chosen by the Client and in conjunction with other software unless efcom expressly stated that they would. If it emerges that the asserted defects are not covered by the warranty, efcom may demand compensation from the Client for services rendered on the basis of the unjustified notice of defects. Such compensation will be claimed on the basis of efcom’s standard daily and hourly rates. If the Client modifies the software in any way, the Client will not be able to make any warranty claims unless the Client proves in each case that the modifications were not the cause of the errors.
If efcom can verify that an unjustified complaint has been made, efcom is entitled to assert a claim for compensation against the Client of €1,800 per person-day, plus the required expenses and Germany’s prevailing statutory rate of VAT with the rate calculated for the relevant period. For the purpose of this contract, a person-day is to be understood as meaning the days from Monday to Friday. One person-day (Monday to Friday) has eight working hours unless the contracting parties reach an alternative agreement in writing.
The Client shall, on receipt of the delivery of the products supplied by efcom, inspect them without delay and submit a complaint in writing to efcom concerning any damage, defects or other complaints within 10 days following receipt. Should the Client fail to do so, they will not be entitled to assert warranty claims unless the defect was not detectable within that period of time.
The Client shall be aware that even with state-of-the art techniques, it is impossible to create software that is entirely free of errors.
The warranty is voided if the Client or a third party authorised by the Client modifies the software production environment without efcom’s consent unless the Client can prove that the modifications made by the Client or a third party authorised by the Client to the software were not the cause of the defects.
9. Industrial property rights
If claims are asserted against the Client due to the direct infringement of third-party industrial property rights caused by a product delivered by efcom, efcom shall only indemnify the Client against any damages that may be found against the Client or agreed by way of settlement, including court costs and lawyer’s fees, subject to the Client notifying efcom immediately and keeping efcom updated about all matters concerning such a claim and, in particular, providing efcom with the necessary information and documentation. Only efcom is entitled to dispose of the entire claim.
efcom excludes liability if the infringement results from compliance with the Client’s specification or the infringement has occurred due to a change in the contractual objects, a combining of the contractual objects with additions or the use of contractual objects or parts thereof in carrying out a process, provided that the contractual objects themselves do not constitute an infringement. The same applies to infringement negotiations which arise after the Client has been forewarned or has acquired knowledge of a possible infringement unless efcom has given written consent to allow further infringements.
In the case of a final and absolute declaration that the further use of the objects of a contract would infringe German industrial property rights of third parties, or, in efcom’s opinion, there is a risk of legal action being taken concerning industrial property rights, efcom may at its own expense, provided efcom is not liable, choose either to procure the right for the Client to continue using the objects of the contract, exchange or alter these in such a manner that no further infringement occurs or to reimburse the Client with efcom’s prevailing amortisation rate upon return of the object of the contract.
efcom can only be held liable for intent or gross negligence, regardless of the legal grounds – including for delay or impossibility of performance – unless it concerns a culpable violation of fundamental contractual obligations of the contract in question, efcom is liable under the German Product Liability Act (ProdHaftG), efcom is liable owing to a promised feature not being provided or if the Client would for other reasons be unreasonably disadvantaged. No liability is accepted for user errors on the part of the Client.
efcom cannot be held liable within the scope of the preceding provision for indirect damages, in particular for lost profits or third-party claims. The Client shall adequately protect data that they prepare and process against potential loss. efcom cannot be held liable for loss of data or damage resulting thereof unless, in cases of intent or gross negligence, liability is prescribed by law and insofar as the Client has ensured that by storing the data in a machine-readable form the data can be reconstructed with reasonable effort.
Liability for damage resulting from the use of the software is limited to the amount of efcom’s liability insurance coverage. The policy is available for the Client to review upon request at efcom’s offices.
If the Client duplicates the software for their own use, accesses it or uses it in other ways that violate the terms of the license contract, efcom will restrict the Client’s liability to the amount of the license fee that efcom would have obtained had no breach of contract occurred, plus lawyer’s fees and other costs resulting from efforts to enforce the provisions of this contract. This restriction does not apply if the software was sold to third parties.
11. Duty of confidentiality
efcom and its employees are obliged to maintain confidentiality. This duty of confidentiality covers all information concerning the Client as well as its customers which is designated as being confidential or that clearly constitutes a business or trade secret in view of other circumstances. This also includes the names of the Client’s customers.
efcom and its employees undertake neither to record, disclose nor use this information in any other way unless it is required to achieve the purpose of the contract. efcom will ensure that third-parties do not become aware of the Client’s business and trade secrets. Furthermore, efcom will conclude appropriate contractual arrangements with its employees and representatives to ensure that they also comply with these obligations even after the conclusion of their service relationships.
The duty of confidentiality remains in force even after termination of this contract.
12. Other provisions: Jurisdiction
The place of performance for the Client’s services are the registered offices of efcom gmbh.
The place of fulfilment for the services of efcom gmbh is the Client’s premises.
The legal venue is Frankfurt am Main, Germany.
This contract is subject to the law of the Federal Republic of Germany.
The Client’s own terms and conditions do not apply.
Amendments and supplements to this contract must be made in writing to be effective.
Should any provision of this contract be invalid, ineffective or unenforceable, this will not affect the validity of the remaining provisions which will remain in full force and effect. In such a case, the Parties shall mutually replace the omitted provision with another legally valid one that comes closest to fulfilling the purpose of the provision it replaces. If no agreement can be reached, either party may request the court to replace the omitted provision.
The translation of the original German text of these General Terms and Conditions into English merely supplements the German text, without expanding the provisions intended by the issuing party (referred to in German law as the ‘user’). The translation must always be issued with the original German text. If a discrepancy is found between the translation and the original German version, the original German version prevails.