I. Application of the Terms and Conditions
The following terms and conditions of efcom gmbh (efcom) shall apply to all efcom offers, orders and deliveries carried out by efcom excluding any deviating terms and conditions of a Customer.
II. Execution of the Agreement
Offers by efcom shall be subject to change and non-binding. A contract shall be formed with efcom only upon written acceptance (order confirmation) by efcom.
If the Customer is in default of the obligations resulting there from, efcom may claim 15% compensation of the value of the order, unless the Customer proves that considerably less damage was incurred.
III. Software/Copyright-/Rights of use/License fees
The Customer is entitled to use the software applications produced by efcom (hereinafter called software), per the respective confirmed offer in accordance with the following conditions.
In the event of the conclusion of a license contract, the Customer is obligated to pay a one-time licensing fee according to the valid price list, taking into account the conditions of the respective order confirmation.
The Customer does not acquire property of the software with the payment and delivery of the software, rather only a nonexclusive right to use the software for an indefinite period.
Granted rights of use of the Customer:
The Customer is entitled to use the software within the scope of the order confirmation for a restricted number of users, defined by the license contract.
The use of efcom products in the framework of modern, multi-layer client/server architectures (e.g. an application server with access to a DBMS) requires explicit approval by efcom. Special terms and license conditions apply.
The Customer shall only be permitted to duplicate the software in machine readable or printed form for backup purposes. Disclosure to third parties is strictly prohibited. The term “third parties” in this sense also refers to subsidiaries or affiliates of the Customer. The duplicate may only be used if the original is no longer usable because of damage or destruction. Technically required automated duplication (loading, running and backup, etc.) within the framework of the intended use in accordance with the descriptions of the product documentation shall be permitted.
Decompilation of the software shall only be permitted in accordance with the restrictions specified in provision § 69e of the (German) Copyright Act (UrhG). Within the framework of the specified restrictions, decompilation of the software does not require explicit permission by efcom. efcom will provide the information required by provision §69e paragraph 1 number 2 UrhG to establish interoperability to authorised persons, who will communicate directly with efcom.
With the exception of the provision of §69e of the Copyright Act, the Customer may not under any circumstances disassemble, reverse-assemble, decompile, reverse-compile, reverse translate or otherwise decode the software.
The Customer may not change labels, copyright notices or ownership information of any manufacturer or efcom in the software or documentation.
IV. Delivery / Transfer of Perils / Acceptance
Delivery is performed under reservation of title. The rights of use according to III. Number 3. are transferred to the Customer only upon complete payment of the sale price.
efcom is entitled to partial services and is not obligated to install the software. If the Customer purchases the software according to the price list, including the documentation, efcom’s service obligation will be fulfilled with the delivery of the software on the respective data carriers, including the license code. Variations from the offer of products or services delivered or performed shall be permitted, provided that the products or services delivered or performed include the functionality of the ordered software or promised services. The conditions of the supply obligation are defined exclusively within the delivery contract or the respective order confirmation including this AGB (Allgemeine Geschäftsbedingungen – General Terms and Conditions).
If the noncompliance of supply or services is to be put down on force majeure, the delivery period shall be suitably extended. Force majeure particularly includes war, political unrest, terrorist activities, usurped power of confiscation or other official decrees, strikes, industrial disputes including lock-outs; as well as insufficient material supplies, mechanical or machine breakdown and other operational interruptions, natural phenomena or other circumstances which are beyond efcoms’control or circumstances that could only be remedied using unreasonable measures.
In case of noncompliance for other reasons, the Customer is obligated to extend the final deadline by a minimum of 3 weeks including a penalty of denial of service. If this deadline expires without fulfillment of the services or delivery of product, the Customer shall be entitled to withdraw from the service, or contract in default. After expiry of the term the withdrawal from the contract shall be excluded.
Should efcom be in delay with regard to only a part of a delivery or service due, or the delivery or performance should prove partly impossible, the Customer shall be entitled to withdraw from the contract or claim compensation for damages only, if partial fulfillment is of no interest for him.
efcom shall be entitled to withdraw from the contract if the required import, or export documents required for the delivery have not been provided.
Shipment and service are carried out at the expense of the Customer; efcom is entitled to determine the carrier.
The risk transfers to the Customer upon assignment of the product(s) for shipping. This shall be applicable even if freight-free delivery has been agreed upon. If efcom stores the product(s) for the Customer, he shall be obligated to collect the product(s). The risk of the availability notification transfers to the Customer in this case.
If efcom performed the installation of the software for the Customer, the following conditions apply: efcom will notify the Customer of the completion of the installation and that the installed products are ready for acceptance. The Customer shall be obligated to accept the installation immediately after the notification. If the Customer fails to accept the installation within two days, or the Customer uses the installed software without acceptance, the acceptance shall be regarded as having taken place. Errors that do not prevent the general operating ability of the installed software and the general use of main software features, do not entitle the Customer to withdraw acceptance. The Customer’s right to claim that efcom resolves general issues remains intact.
Returns, irrespective of the legal basis on which they arise, must be announced by telephone to efcom and be approved by efcom. The returns number must be clearly marked on the package. Returns without a returns number will be declined and returned to the Customer at his expense.
All test runs (of the software) will be charged with a test fee and shipping expenses. If the product has been accepted, the test fee will not be added to the value of the products. In the event that the product has not been accepted, the deletion of the test software must be confirmed by writing to efcom, no longer than 8 weeks after the test run.
- Customer’s Duties of Co-operation
- The Customer shall carry out any and all preparations required for the setup and installation of the software.
In addition, in his place of business he shall establish free of charge the preconditions required for performing efcom’s work, specifically:
Provide appropriate office premises for efcom’s employees;
Provide efcom’s employees with unimpeded access to the computers and servers required for performing the work.
Ensure that his technical environment conforms with the software and is functional.
Provide and procure test data and all other information and aids required for the work of efcom’s employees.
Offer on-going disclosure of desired methods and procedures for data processing.
Create back-up copies of data and files affected by the installation at the beginning and on an on-going basis during installation.
efcoms’ prices apply as established in Neu-Isenburg plus the statutory value-added tax applicable at the time. Costs for data carriers and shipping will appear separately on our invoice. Data carriers will only be billed separately, in the event that they take part in the scope of delivery. Unless expressly agreed upon in writing, payments are due 10 days after the date of invoice and without deductions of any kind. If the Customer causes a delay in delivery, payment shall be due when the products are ready for shipment.
In the event that the Customer’s payments are in default, efcom shall be entitled to demand interest in the amount of 8% above the prime interest rate, in accordance with § 1 of the discount rate transitional law of June 9, 1998 (BGBl. I S. 1242). Interest for late payment will be calculated from the time the Customer is in default. efcom charges an additional fee of 15€ for each reminder.
Shipments up to a value of € 1,000.00 as well as first deliveries are generally due for payment upon receipt by cash on delivery.
The right of counterclaims can only be asserted by the Customer, when these claims have been established beyond dispute or the claim was recognized by declaratory judgment. The Customer may only assert his right of retention insofar as it is based on the same contractual relationship as efcoms’ pecuniary claim.
The Customer must inspect the invoice without delay, but at the latest within 7 days after receipt and, if applicable, submit a complaint to efcoms’ accounting staff. Should the Customer fail to do this, he shall not be entitled to assert rights of retention against efcom when the invoice is due. efcom will review late complaints and, if applicable, issue a credit note to the Customer.
During each successive maintenance period, for which the Customer has paid a maintenance fee, efcom will provide the Customer with all new versions, corrections, extensions, improvements and all applicable documentation of the software. efcom will provide all of these services at the official time of publishing, or per order of the Customer.
During each successive support period, for which the Customer has paid a maintenance fee, the Customer is entitled to call customer service concerning the identification and solution of difficulties that may occur when using the software. efcom will respond to Customer’s service requests as quickly as possible and will use reasonable efforts to correct all errors brought forward by the Customer, provided that the conditions which led to a defect can be understood and causes and effects recognized.
If the defect has no cause within the software, or is the result of gross negligence or modifications by the Customer, an additional charge will be issued to the Customer. Furthermore, the Customer agrees to assume full responsibility for all costs reasonably associated with travel and accomodation expenses, as well as Customer service fees. The support service does not include new software products or options which are sold separately from efcom products.
efcom assumes warranty for delivered products for the duration of 12 months from the date of acceptance of the products. In the event that the Customer carried out the installation, efcom assumes warranty for delivered products 12 months from the delivery date of the products. The delivery of updates does not extend the warranty period.
In case of justified Customer complaints about the software, viz. reproducible software defects which severely impact the value or suitability of the efcom products, efcom shall repair these defects with the means at efcoms’ own disposal. These means include: a free of charge correction, workaround solutions, or free of charge replacement of defective products. The Customer is entitled to reduce the license fee that was agreed upon, revise or withdraw from the respective license contract only in the event that efcom is not able to repair the defects after a minimum of two attempts.
Any additional liability of efcom, in particular for defects not resulting from the delivered products, is excluded, unless efcom expressly assured the Customer of an absence of such defects, or efcom or a subsidiary are liable for gross negligence and intent.
Furthermore, any additional warranty is excluded. Particularly excluded is any assurance that efcom products meet the specific requirements of the Customer and are of economic benefit for him. Warranty for coordinated operation with other software is excluded, unless efcom expressly stated the absence of such defects. If the Customer has made claims on efcom based on entitlement relating to defects and it becomes apparent that the defect in question results from circumstances which do not fall under the warranty obligation, efcom is entitled to charge compensation from the Customer for the services performed at efcoms’ usual daily and hourly rates. In the case of modifications of the software by the Customer, he shall not be entitled to warranty claims unless the Customer proves that the performed modifications of the software were not the cause of the defects.
If efcom can verify that an unjustified complaint has been made, efcom shall be entitled to charge the Customer with a compensation fee of €1,800.00 per person-day, plus the required expenses and the statutory value-added tax with the rate calculated for the appropriate time period. For the purpose of this contract, person-days shall be understood as the days from Monday to Friday. A person day (Monday to Friday) contains eight working hours, unless the contractual partners come to another agreement, which has to be made in writing.
The Customer must inspect the delivered products without delay and, if applicable, submit a complaint in writing to efcom about defects, damage or other complaints within 10 days after the delivery. Should the Customer fail to do so, he shall not be entitled to assert warranty rights, unless the defect was not detectable within that period of time.
The Customer understands that according to the state of the art, it is impossible to create software that is completely free from defects.
The warranty shall not apply in cases where the Customer or a third-party authorised by the Customer modifies the software production environment without efcom’s consent, unless the Customer proves that the performed modifications (by the Customer or a third-party authorised by the Customer) of the software were not the cause of the defects.
IX. Industrial property rights
Should claims be made against the Customer by third parties due to direct infringement of industrial property rights and the infringement has been caused by a product delivered by efcom, efcom shall indemnify the Customer against any damages that may be awarded against the Customer or agreed by way of settlement including court costs and lawyer’s fees, subject to the following conditions: The Customer shall notify efcom immediately and regularly about all matters concerning such a claim and, in particular, provide efcom with the necessary information and documentation. efcom alone is entitled to dispose of the claim.
Liability shall be excluded by efcom if the infringement results from a specification of the Customer, or the infringement has occurred due to a change in the subject matter of contracts, due to a merging of the subject matter of contracts with additions, or due to the use of contractual objects or parts thereof in carrying out a process, if the subject matter of a contract does not constitute an infringement in itself. efcom shall not be liable for negotiations concerning an infringement after the Customer has been forewarned, or acquired knowledge of a possible infringement, unless efcom has given its consent in writing to allow further infringements.
In the event of a final and absolute finding of a court that the further use of the subject matter of a contract would infringe German industrial property rights, or, in efcoms’ opinion there be a danger of legal action being taken concerning industrial property rights, efcom may at its own expense, as long as efcom is not liable, choose either to procure the right for the user to continue using the subject matter, or to exchange or alter these in such a manner that no further infringement occurs, or to reimburse the Customer with efcoms’ prevailing amortisation, with the contract returned to the Customer.
efcom is also liable, regardless of legal justification, in the event of delayed performance or impossibility of performance, but only in cases of intent or gross negligence, unless there is a culpable violation of significant contractual obligations (cardinal obligations) of the concerned contract, or liability under the product liability law or in cases of liability owing to a promised feature not being provided, the Customer would for other reasons be completely unreasonably disadvantaged.
efcom is not liable within the scope of the preceding provision for indirect damages, in particular for lost profits or third-party claims. The Customer will be explicitly notified, that processed, or reprocessed data must be adequately protected against a potential loss. It is to be explicitly noted that efcom is not liable for loss of data or damage resulting thereof, unless in cases of intent or gross negligence, where liability is mandatory, and the Customer has stored the data in machine-readable form, so the data can be reconstructed with reasonable effort.
Liability for damage resulting from the use of the software is limited to the amount of efcoms’ liability insurance. The policy is available for Customer review upon request at the efcom offices.
In the event that the Customer duplicates the software for his own use, accesses or uses them in other ways that manifest a breach of the license contract, efcom is ready to restrict the Customer’s liability to 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.
efcom and its employees agree to maintain confidentiality. This confidentiality shall apply to any and all information concerning the Customer and its clients which is specified as confidential or that clearly constitutes business or trade secrets based on the surrounding circumstances. This shall include the names of the Customer’s clients.
efcom and its employees agree not to record, disclose or exploit any such information, unless this is required for achieving the contract purpose. efcom shall ensure that none of the Customer’s business and trade secrets are disclosed to third parties. efcom shall ensure by way of appropriate contractual agreements with its employees and representatives that they also comply with these obligations, even after the conclusion of their service relationships.
This confidentiality shall also survive termination or expiry of this agreement.
XII. Miscellaneous: Court of Jurisdiction
The place of performance of the Customers’ services is efcoms’ main offices.
The place of performance of efcoms’ services’ is the Customer’s main offices.
The realm of legal jurisdiction is Frankfurt am Main.
This Agreement shall be governed and construed by the laws of the Federal Republic of Germany.
Terms and conditions of the Customer which conflict with or deviate from these General Terms and Conditions are not applicable.
Any modification to the contract and to this Agreement must be in writing.
Should individual provisions of these standard terms and conditions be invalid, the validity of the remaining provisions shall remain thereby unaffected. The parties shall replace the respective invalid provision with a valid provision that most closely reflects the commercial intent of the invalid provision. In the event that no agreement can be reached, each party hereto reserves the right to request a court to replace the omitted provision.
The translation of the German text of the standard terms and conditions into English merely serves as a supplement to the German text, without expanding the provisions intended by the user. The translation shall always be provided together with the original German text. In the event of a discrepancy between the translation and the original German text, the original German text shall prevail.