Terms of Use
These Terms of Use apply to the services of EPR-System GmbH, Bachstr. 22, 52066 Aachen, Germany (also referred to as "we" or "EPR-System"), which are provided to customers (hereinafter "Customer" or "you"). The Customer's general terms and conditions shall not apply unless we expressly agree to their validity. Our services and terms of use are aimed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) as well as legal entities under public law and special funds under public law, but not at consumers (Section 13 BGB).
1. General information
Preamble
If you have concluded a licence agreement with us for the provision of services or have placed your order via our order process including subsequent order confirmation (hereinafter also referred to as "contract" or "licence agreement"), you acquire the following services & rights, subject to special matching agreements in the licence agreement or in the offer or your order.
1.1 Subject matter of the contract
(1) Under the product name "ElektroGarantie", EPR-System offers software for applying for insolvency-proof financing guarantees for B2C devices in accordance with Section 7 (2) No. 4 ElektroG (hereinafter also referred to collectively as "services").
(2) The specific service components that we provide to you in the contractual relationship result from the licence agreement, the offer or your order for the items specified in the offer.
(3) If we process personal data on your behalf as part of the contractual relationship with you, this processing is carried out on the basis of the data processing agreement pursuant to Art. 28 GDPR ("DPA"), which comes into force immediately upon the contract taking effect.
b. Web & server hosting
(1) We also provide web & server hosting services in relation to our software services. Our web & server hosting services include in particular the provision of an IT environment for our software. The IT environment is created within one or more servers. These servers are located locally with us or in rented data centres. They can also consist of virtual private servers or be rented from professional hosting providers.
(2) As part of our web & server hosting services, we provide you with a storage space of the size you have booked on our server to store your data.
(3) We will continue to ensure that your stored data can be accessed via the Internet. You remain the sole authorised user of the data and can request its return at any time. You are not authorised to transfer your storage space to a third party for use.
2. Remuneration for our services
(1) All remuneration is subject to VAT at the statutory rate applicable at the time and place of performance of the service. We are authorised to collect all remuneration via payment service providers. If we do so, you must also observe the terms and conditions of these payment service providers when using them. We do not charge you a separate fee for any of the payment service providers.
(2) Our invoices are due upon receipt by you and are payable without deductions within 14 calendar days to our account specified in the invoice.
(3) We have the right to introduce a payment obligation for our services. In addition, we have the right to increase or decrease our prices at any time if the prices of our service providers change, if this is necessary to compensate for inflationary price changes, if the consumer price index changes accordingly or in the event that we wish to price our business model differently. Of course, you will be informed of price changes in advance so that you can agree or reject them. If you do not agree with a price change, we will try to find a solution in joint consultations. If no solution can be found, each party has the right to terminate this contract with one (1) month's notice from the time negotiations fail.
3. Online booking
(1) If you book your access to our software and other services via our online booking process, the following provisions shall apply in addition to the other contractual conditions.
(2) The licence agreement is concluded by the use of our services through the following steps:
- On our website you will find information about the content and costs of the chargeable services we offer. This information does not constitute an offer to conclude a contract for the utilisation of our services.
- Only by submitting the corresponding booking form do you submit a binding offer to us to conclude a contract for the corresponding services.
- Before submitting the booking form, we draw your attention to the fact that the booking is subject to a charge and give you the opportunity to take note of these terms of use and other contractual conditions. You can also download and save them.
- We also give you the opportunity to check and, if necessary, correct your entries before sending the booking form.
- After submitting the booking form, you will receive a confirmation of receipt of your booking from us to the e-mail address you have provided. This confirmation of receipt also constitutes acceptance of your offer to book the service.
- In this e-mail or in a separate e-mail, we will send you the text of the contract (consisting of the order, terms of use and order confirmation and invoice), if necessary as a link, or make it available to you (contract confirmation). You can download and save these.
- Upon full payment of the purchased services, you will receive immediate access to the services, unless otherwise agreed.
4. Principles for the provision of our services
(1) Our software is online-based. A functioning internet connection is required to use our software.
(2) You are responsible for ensuring that the technical requirements for our software are met. This includes, among other things, an up-to-date web browser (e.g. Chrome, Edge, Firefox) and an up-to-date operating system (e.g. iOS, Android or Windows).
(3) We will provide you with the passwords, access codes, technical specifications, connectivity standards or protocols or other relevant procedures necessary to enable the users authorised by you to access our software. Each authorised user will be given a unique user ID which may only be used by that user. You are responsible for providing the correct information about each Authorised User (names, email addresses and contact information) for this process and for updating this information. You shall require each Authorised User to comply with these Terms of Use, the Licence Agreement and all regulations referred to herein.
(4) With our software and its functions, we merely provide you with a technical basis for the purposes to be realised by you within the limits of the purchased services. We assume no responsibility for the actions performed with our software or for the content processed with our software. The legal regulations, agreements and contracts that you conclude with your customers, partners, employees, etc. with whom or for whom you use our software apply exclusively to all actions performed and content processed by you with our software.
(5) The provisions of tenancy law shall apply to the utilisation of our software. Maintenance measures such as updates, patches and hotfixes are part of our service. Further support will be offered if agreed accordingly. In addition to the maintenance measures, the statutory warranty for rental defects shall apply.
(6) Adjustments, changes and additions to the software as well as measures that serve to identify and rectify malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.
(7) The availability of the software under this contract is 97.5% on an annual average, including maintenance work. Availability shall not be impaired or interrupted for more than two consecutive calendar days.
(8) You may not transfer our services to third parties for commercial use.
(9) We are authorised to have our services provided by third parties and subcontractors.
(10) If we offer you the opportunity to utilise the services of third parties, in particular our partners, in our services, in particular in the context of using our software, this may take place via a separate contractual relationship between you and the third party if this is indicated separately. If you utilise such services, we are not responsible for the performance of the third party. The terms and conditions agreed between you and the third party in this contractual relationship shall apply exclusively.
(11) We have the right to provide updates, upgrades, enhancements and other material improvements to our Software during the term of the Agreement at our sole discretion. You acknowledge that such updates may result in changes to the appearance and/or functionality of the Software, the supported environment and/or that continued use of the Software may require you to update your own system, including new operating systems (e.g. iOS, Android or Windows) or web browsers.
(12) In the event of force majeure, we shall be released from our obligation to provide the services for the corresponding duration if we are actually unable to provide the services. Force majeure shall include fire, explosion, flooding, war, blockade, embargo, pandemic and industrial action for which we or a subcontractor are not responsible.
(13) You are responsible for the actions of your users and are liable for them as for your own actions.
(14) Links or functionalities in our software may take you to third-party websites and software that are not operated by us and for which we are not responsible. Such links or functionalities are either clearly labelled or recognisable by a change in the address line of the browser or a change in the user interface.
(15) You are prohibited from using our software:
- infringe third-party property rights such as trademarks, copyrights and naming rights,
- harass other customers and third parties,
- to use documents, files, third-party IT systems and data containing malicious code or viruses in connection with our services,
- use mechanisms, software and scripts that go beyond the functionalities and interfaces provided, in particular if this blocks, modifies, copies or overwrites our services, and
- impair our services by altering data (Section 303a StGB), computer sabotage (Section 303b StGB), falsification of data relevant to evidence (Sections 269, 270 StGB), suppression of data relevant to evidence (Section 274 StGB), computer fraud (Section 263a StGB), spying on data (Section 202a StGB), interception of data (Section 202b StGB) or other criminal offences.
(16) We are entitled to refuse access to our software after stating legitimate reasons and to block or exclude you as a customer or your users or to terminate the contract extraordinarily if we receive repeated complaints about you or if the specifications from the contract and these terms of use, other requirements communicated by us or compliance with legal regulations are repeatedly disregarded. We will inform you of this immediately and give you the opportunity to comment. Before a complete blocking or a complete exclusion, we will inform you of this a reasonable time in advance, stating the relevant reasons. If you remove the reason that led to the rejection, blocking or exclusion, we will consider reinstating you in our software.
5. Your obligations to co-operate with our services
(1) In particular, you shall provide the following supplies and co-operation to us free of charge as ancillary performance obligations:
- If necessary: Granting of necessary rights of use to third-party software, in particular databases, server operating systems and applications.
- If necessary: Creation of backups of the IT system and other IT components.
- Reports of material defects, defects of title and faults must include a description of the problem (e.g. with screenshots, anonymised log files).
- If necessary: Notification of your applicable guidelines for remote access to your IT system.
- If necessary: Provision of test cases, test data and test environments.
- We reserve the right to adapt our services at short notice in the event of security-related updates. Any resulting adjustments to your IT systems must be made by you. We will provide you with support if required.
- Independent and autonomous integration of the software (including interface, if applicable) into the customer's existing IT system.
(2) If the provision of our service is delayed due to a circumstance for which you, your legal representatives, employees or vicarious agents are responsible, any agreed deadlines shall be postponed by the corresponding period. We are therefore released from our obligation to perform until the proper fulfilment of your obligations to cooperate.
6 Liability & general liability
(1) The use of our services is at your own risk. Our software is provided without express or implied warranty. Any oral or written advice given by us, our employees, legal representatives, agents and other third parties connected with us does not create a warranty or in any way extend the scope of this warranty and you must not rely on such information or advice.
(3) Subject to separate provisions in the contract or in these Terms of Use, in particular in Clauses 6 and 7, we shall be liable for direct property damage and financial loss caused by us, our legal representatives, vicarious agents and subcontractors engaged by us up to EUR 10,000 per loss event, up to a maximum of EUR 20,000 per year of the contract term, irrespective of the number of loss events.
(4) In the event of simple negligence, our liability shall be limited to the foreseeable damage typical of the contract. Apart from the breach of essential contractual obligations, our liability for compensation for indirect property damage and financial loss, in particular loss of profit, is completely excluded in the event of simple negligence. In the event of force majeure and the use of our services free of charge, our liability for simple negligence is excluded in its entirety. Material contractual obligations are those whose fulfilment is essential for the proper performance of the contract and on whose fulfilment reliance may be placed. Both parties agree that the foreseeable damage typical for the contract is limited to twice the order value.
(5) We shall have unlimited liability in the event of injury to life, limb or health and in the event of wilful, grossly negligent or fraudulent conduct. The same shall apply in the event of the written assumption of a guarantee for the quality or durability of a service to be provided by us.
(6) Our liability under the Product Liability Act remains unaffected.
(7) You shall be liable for the actions of your employees, legal representatives, vicarious agents and any other users of our services in the same way as for your own actions. Furthermore, within the scope of your responsibility (see in particular Sections 4 and 5 of these Terms of Use), you shall indemnify us on first demand against any third-party liability claims arising from damage caused by your use of our services to third parties and other affected parties.
7. Warranty for our services
(1) In the event of material defects and defects of title, the statutory provisions shall apply subject to the stipulations in this clause. Section 377 HGB shall apply. All claims for defects are subject to the condition of your immediate notification of defects in accordance with § 377 para. 1 and para. 3 HGB.
a. Material defects
(2) In the event of material defects, you shall initially have the right, at our discretion, to rectification or replacement free of charge (hereinafter "subsequent fulfilment"). If the defect cannot be remedied after two attempts at subsequent performance, it must be examined whether your interests can be met by an alternative solution before any cancellation or withdrawal.
(3) In the case of rent, strict liability for damages for defects existing at the time of transfer pursuant to Section 536a (1) BGB is excluded.
b. Defects of title
(4) Our services are provided to you free of third-party rights. Please inform us immediately in text form if you become aware of third-party rights to our services.
(5) At our request, you must leave the defence against the claims asserted by third parties to us, provide us with all information necessary for this, provide explanations and grant us powers. In return, we shall indemnify you against claims for payment and damages based on the rights of third parties.
(6) If our services are actually encumbered with third-party rights, we shall be entitled to choose,
- to eliminate the rights of third parties or their assertion (e.g. by paying licence fees), or
- to modify our services in such a way that the rights of third parties are no longer infringed.
c. General
(7) Claims for defects shall lapse if you have made changes to the services without our prior consent or if the services are used by you for a purpose not covered by this contract and this action is solely responsible for the occurrence of the defect.
(8) All claims for defects shall become time-barred after 12 months, unless they are already limited or excluded in accordance with the aforementioned provisions.
8. Your right to use our services
a. Software use & general information
(1) You receive a simple, non-exclusive right to use our services, limited in time to the duration of the contract and unrestricted in terms of territory.
(2) Your majority-owned companies are equally entitled to use the software, provided that the relevant licences have been acquired. An independent authorisation to sublicense or otherwise transfer your rights of use is not associated with this. This right of use ends when the company no longer fulfils the requirements of an affiliated company (e.g. within the meaning of Sections 15 et seq. of the German Stock Corporation Act).
(3) You are not authorised to exhibit, publicly reproduce, in particular make available to the public, edit, modify, translate, decompile or otherwise modify the software. Your rights under Sections 69d (3) and 69e UrhG remain unaffected.
(4) We are authorised to use our services, including new releases, as well as other general know-how, experience, methods and procedures developed in connection with the contract for other purposes (provision to third parties, as open source software, etc.).
(5) Unless otherwise agreed, test and demo licences are limited to a term of up to 30 days.
b. Open source software
(6) We grant you such rights to the open source software contained in our services as can be transferred to you in accordance with the licence conditions applicable to us. You are permitted to use our services exclusively within the scope of these licence conditions. We assume no warranty or liability for any use beyond this.
9. Transfer to third parties
(1) We are authorised to transfer the contract to a legal successor or a company affiliated with us. We will inform you of this in text form at least two months before the planned transfer.
(2) Any transfer of the contract to a third party requires your prior consent. In the event of your objection, the contract will continue unchanged. The objection shall be deemed good cause for extraordinary cancellation of the contract by us.
10. Secrecy
(1) In the course of the co-operation, both parties gain knowledge of business secrets of the other party or third parties. A trade secret is information that is neither generally known nor readily accessible to persons who normally deal with this type of information, is therefore of commercial value and is therefore subject to appropriate confidentiality measures (cf. Section 2 GeschGehG). A trade secret is also information that is labelled as a trade secret, that is protected by industrial property rights or copyright, that is subject to banking secrecy or data protection and for which there is a legitimate interest in confidentiality. Information that is known to the other party prior to disclosure, that has become known to the public after disclosure without the involvement of the disclosed party, that the disclosed party has learnt from an authorised third party and that the disclosed party has developed itself is not a trade secret.
(2) The receiving party, as well as all those who come into contact with business secrets in accordance with the intended purpose, are obliged to treat the business secrets as strictly confidential and only to use them or disclose them to third parties and employees if this is necessary in connection with the business purpose. In all other respects, the receiving party shall protect the trade secrets from disclosure to third parties.
(3) Objects as well as files or other intangible objects containing business secrets shall be deleted or returned to the disclosing party immediately upon request of the disclosing party or at the latest upon termination of the contractual relationship.
11. Reference citation
Both parties are authorised to mention the other party, including the logo and brief description of the respective company, in the external presentation. The information required for this, such as logo, description texts, version status, contact and support channels, must be provided in advance.
12. Final provisions
(1) The assignment of individual claims arising from this contract requires the prior consent of the other party in text form. The assignment of monetary claims is excluded from this.
(2) The law of the Federal Republic of Germany shall apply exclusively to the entire contractual relationship between the parties, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) The place of jurisdiction for all disputes arising from the contractual relationship shall be the competent court at our registered office.
(4) You are solely responsible for compliance with export control law and all import and export regulations relating to our services.
(5) Amendments and additions to the terms of use and the entire contract existing between us must be made in text form to be effective. amendments and additions to the contract which we (must) make due to changes in legal or technical requirements for our service provision and which have no negative effects on the services to which you are entitled shall become effective if you do not object to an amendment in text form within one (1) month of receipt of a notification of amendment and we have informed you in advance of your right of objection. If you object to the change, the contract shall continue to apply unchanged and we shall be entitled to extraordinary cancellation of the contract with one (1) month's notice to the end of the next calendar month. Changes and additions to the contract that we wish to make due to changes in service, remuneration or other commercial or operational requirements shall only become effective if you expressly agree to them. This consent can be given by clicking on a consent button in the change notification (e-mail or pop-up when using our services) or in another simple and transparent way provided by us for you. The text form also applies to any amendment to this formal clause. The precedence of individual collateral agreements remains unaffected. The aforementioned deadlines do not apply and there is only a right to information about changes to the contract if the changes are necessary to prevent unforeseen and imminent danger in order to protect you from fraud, malware, spam, data protection violations or other cyber security risks.
(6) Should one of the provisions of the contract be invalid or should the contract contain a loophole requiring regulation, this shall not affect the validity of the remaining or incomplete provisions. In this case, the parties undertake to replace or complete the ineffective or incomplete provisions with provisions that come as close as possible in economic terms to the ineffective or incomplete provisions.
Status: September 2024