General terms and conditions of ecm4u GmbH

Status: April 2013

Disclaimber: This is an english translation of the german "Allgemeine Geschäftsbedingungen der ecm4u GmbH" for convenience only. The original german version is the only legally binding version.

1. validity of the general terms and conditions

1.1 The general terms and conditions of ecm4u apply exclusively; any terms and conditions of the customer which conflict with or deviate from these terms and conditions will not be recognized unless we have expressly agreed to their validity in writing.

1.2 The terms and conditions of business of ecm4u shall also apply if ecm4u performs the service without reservation in the knowledge of conflicting or deviating terms and conditions of business of the customer.

1.3 In the case of continuing obligations, ecm4u is entitled to amend or supplement these terms and conditions, insofar as it is unreasonable for ecm4u to continue under the existing contractual conditions. Reasons for unreasonableness are especially legal changes or necessary changes due to changed circumstances. Changes are only permissible as far as they are reasonable and acceptable for the customer. The amended terms and conditions shall be communicated to the customer in text form (e.g. e-mail, fax, post), highlighting the amendments, with a reasonable period of notice prior to the commencement of validity. If the customer does not object to the amended terms and conditions within 4 weeks at the latest from receipt of the amended terms and conditions, they shall become part of the contract. If the customer objects to the amended terms and conditions, ecm4u is entitled to extraordinary termination at the time the new terms and conditions come into effect, if ecm4u cannot reasonably be expected to continue the contract under the old terms and conditions1.

1.4 These general terms and conditions apply only to companies according to § 14 BGB.

2. offer, conclusion of contract via ecm Market

Our offers via the ecm Market are non-binding. By placing an order, the buyer bindingly declares that he wishes to purchase the contents of his shopping cart (contract offer). Immediately after placing his order, the buyer will receive an order confirmation from us by e-mail. This confirmation of receipt does not constitute a confirmation of the order. The acceptance takes place expressly by e-mail, verbally, in writing or by sending the invoice or the goods. If an acceptance does not take place within 14 calendar days, the orderer's offer is considered as rejected. You order via ecm Market by placing items in the shopping cart, selecting your payment method and submitting the order.

3. Offer, Conclusion of Contract in Text Form

3.1 The customer receives an offer from ecm4u concerning

the purchase or creation of software,
the provision of IT services,
the provision of support and software maintenance services, which he can accept within 14 days.

3.2 The contract between ecm4u and the customer is concluded by acceptance of the offer of ecm4u by the customer in text form.

3.3 If the customer accepts the offer at a later date or changed conditions, e.g. a different price, this acceptance is to be evaluated as an offer to conclude a modified contract, which can be accepted by ecm4u.

4. purchase

4.1 Subject matter of contract Purchase

4.1.1 The subject of the contract may be the purchase of software by the customer or the creation of individual software by ecm4u.

4.1.2 In the case of purchase of software, the type and scope of the software results from the product description of the software.

4.1.3 In the case of the creation of individual software solutions for the customer, the type and scope of the software results from the agreed service description and the specifications.

4.1.4 The software shall always be delivered only in executable object code. The source code of the software is not part of the contract.

4.1.5. ecm4u is entitled to make use of third parties in the performance of contractual services.

4.2 Delivery

4.2.1 The software or data to be supplied by ecm4u will be made available to the customer as a download or handed over to the customer on a data carrier.

4.2.2 If a delivery date is stated in the quotation, this does not constitute a fixed date, unless ecm4u has expressly confirmed such a date as a fixed date.

4.2.3 Specified delivery dates correspond to the respective planning status and presume the timely and proper fulfillment of the customer's cooperation obligations.

4.2.4 In the case of a download, delivery shall be deemed to have taken place upon provision of the file and sending of a download link to the Customer.

4.2.5 Delays in delivery which occur at ecm4u or at a sub-supplier/subcontractor of ecm4u due to force majeure or due to circumstances which are equivalent to force majeure (such as currency and trade policy or other sovereign measures, strikes, operational disruptions such as fire, machine defects, breakage, lack of raw materials or energy) entitle ecm4u to postpone delivery for the duration of the hindrance. If the execution of the contract becomes unreasonable for the customer due to the delay, he is entitled to withdraw from the contract. In the case of impediments to performance which are not merely temporary, ecm4u is also entitled to withdraw from the contract, insofar as adherence to the contract is unreasonable for ecm4u.

4.3 Data transmission, obligation to cooperate

4.3.1 The customer designates a contact person who is the interlocutor for ecm4u and who makes the necessary decisions or can bring them about without delay.

4.3.2 The customer shall provide ecm4u with the information required for the performance of the contract.

4.3.3 The customer shall ensure that the hardware on which the software is to be used and the third-party software required for its operation, which is not the subject of this contract, is suitable and available for the operation of the software in accordance with the service description or the manufacturer's description.

4.3.4 The customer shall test the delivered software for its functionality and scope of functions before it uses the software productively in its company.

4.3.5 The customer must ensure that data transferred to ecm4u is free of damaging software, in particular computer viruses. The customer must therefore check data for freedom from viruses, worms, Trojans, etc. using the latest virus protection programs before transmitting them to ecm4u. The customer is fully liable for any damage, as far as it is caused by a virus, worm, Trojan etc. transmitted by him. The liability shall also include the reimbursement of the costs for the system check, damage assessment and removal costs of a specialist company as well as the reimbursement of the corresponding downtimes.

4.3.6 The customer bears the full risk of loss of data transmitted by him to ecm4u. Data backup and the creation of regular backup copies are the sole responsibility of the customer. ecm4u is entitled, but not obliged, to make an appropriate copy of the data. In the event of a loss of data transmitted by the customer, the customer shall transmit the data concerned to ecm4u again free of charge.

4.4 Obligation to give notice of defects, acceptance

4.4.1 The customer is obliged to inspect software supplied by ecm4u for obvious defects. Notification of defects due to obvious defects must be made in writing to ecm4u within one week of delivery of the software or of provision of the software and sending of a download link to the customer. Timely dispatch of the notice of defect is sufficient to meet the deadline.

4.4.2 Hidden defects which cannot be detected even after immediate careful examination must be notified to ecm4u in writing immediately after discovery. In the event of a breach of the duty to examine and give notice of defects, the software supplied by ecm4u shall be deemed to have been approved in view of the defect in question.

4.4.3 In the case of individually created software, the customer must accept the software within two weeks of delivery or, in the case of a download, of the provision and sending of a download link to the customer, provided that there are no significant defects in the software. Insignificant defects that do not affect the function and usability of the software do not entitle the customer to refuse acceptance.

4.5 Defects, Warranty

4.5.1 Warranted characteristics are only those that are expressly designated as such.

4.5.2 In the event of a defect, the warranty is initially limited to subsequent performance by ecm4u. If the supplementary performance fails twice within a reasonable period of time, the customer is entitled to a reduction of the purchase price or to withdraw from the contract.

4.5.3 If a defect notified by the customer does not exist, the customer shall reimburse the costs incurred by ecm4u for the examination in connection with the notification of defect, insofar as the customer has culpably failed to recognize the non-existence of the defect.

4.5.4 Any claims due to defects become statute-barred one year after the transfer of risk, notwithstanding the statutory provisions on suspension and recommencement of the limitation period.

4.6 Software Maintenance

4.6.1. ecm4u is only obliged to supply updates if the parties have concluded a separate maintenance contract for this purpose.

5. IT Services of ecm4u

5.1 Subject matter of the contract IT services

5.1.1 The service provided by ecm4u consists of the provision of IT services, e.g. in the form of participation, support, consulting or training activities or organizational support for IT projects.

5.1.2 The details of the type and scope of the service result from the offer as it became part of the contract or result from other agreements made between the parties.

5.1.3 The customer has no claim to the provision of the service by specific employees of ecm4u. Rather, the selection of employees used by ecm4u for the provision of services is the sole responsibility of ecm4u.

5.1.4. ecm4u is also entitled to use third parties for the performance of contractual services.

5.1.5 Unless the parties have expressly agreed that a specific result is owed, ecm4u is only obliged to provide the service in accordance with the contract and not to achieve a specific result.

5.2 Time of performance, obligation to cooperate and delay

5.2.1 If a time of performance or period of performance (both hereinafter referred to as "performance time") is stated in the quotation, this does not represent a fixed date, unless ecm4u has expressly confirmed such a date as a fixed date.

5.2.2 A stated performance time corresponds to the respective planning status and presupposes the timely and proper fulfillment of the customer's obligations to cooperate.

5.2.3 In order to meet the performance deadlines, the Customer shall immediately fulfill its obligations to cooperate. These include in particular the provision free of charge of information, data and other content, hardware and software, rooms and other work equipment required for the performance of the contract.

5.2.4 Delays in performance occurring at ecm4u or at a sub-supplier/subcontractor of ecm4u due to force majeure or due to circumstances equivalent to force majeure (such as measures of monetary or trade policy or other sovereign measures, strikes, operational disruptions such as fire, machine defects, breakage, shortage of raw materials or energy) entitle ecm4u to postpone delivery for the duration of the hindrance. If the execution of the contract becomes unreasonable for the customer due to the delay, he is entitled to withdraw from the contract. In the case of impediments to performance which are not merely temporary, ecm4u is also entitled to withdraw from the contract, insofar as adherence to the contract is unreasonable for ecm4u.

5.3 Obligations to give notice of defects, limitation period

5.3.1 The customer is obliged to inspect work results delivered by ecm4u for obvious defects. Notification of defects by the customer presupposes that the customer has duly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).

5.3.2 Notices of defects shall be excluded if they are not asserted in writing within one week after receipt of the data. Timely dispatch of the notice of defect shall be sufficient to comply with the time limit.

5.3.3 Hidden defects which cannot be detected even after immediate careful examination must be notified to ecm4u in writing immediately after discovery. In the event of a breach of the duty to inspect and give notice of defects, ecm4u's performance shall be deemed to have been approved in view of the defect in question.

5.3.4 Any claims for defects shall become statute-barred one year after the passing of risk, without prejudice to the statutory provisions on suspension and recommencement of the limitation period.

5.4 Data transmission, data backup

5.4.1 The customer must ensure that data transmitted by him to ecm4u is free of damaging software, in particular computer viruses. The customer must therefore check data for freedom from viruses, worms, Trojans, etc. using the latest anti-virus programs prior to transmission to ecm4u. The customer is fully liable for any damage, as far as it is caused by a virus, worm, Trojan etc. transmitted by him. The liability shall also include the reimbursement of the costs for the system check, damage assessment and removal costs of a specialist company as well as the reimbursement of the corresponding downtimes.

5.4.2 The Customer shall bear the full risk of data loss of the data transmitted by it. Data backup and the creation of regular backup copies are the sole responsibility of the customer. ecm4u are entitled, but not obliged, to make a corresponding copy of the data.

5.4.3 In the event of data loss of the data transmitted by the customer, the customer shall transmit the data concerned again to ecm4u free of charge.

5.5 Term of Contract, Termination of Service

5.5.1 The contract runs for an indefinite period.

5.5.2 The contractual relationship ends by termination or fulfillment of all contractual obligations.

5.5.3 Each party is entitled to terminate the contract with six weeks' notice to the end of the month. The right to extraordinary termination shall remain unaffected.

6. support and maintenance

6.1 Subject matter of the contract Support If support and software maintenance are ordered, the ecm4u software offers support services and solutions in case of occurring errors and problems for its own products. Software products for which the customer receives support and maintenance from ecm4u are explicitly identified in an invoice or support letter from ecm4u.

6.2 Definitions Bugfix: A bugfix is used to correct errors in the program source code that could otherwise cause malfunctions. Patch: A patch is a corrective release of software or data to close security holes and eliminate bugs. Update: An update extends the functionality of the software in the existing version and may also include bug fixes. Upgrade: An upgrade includes a newer or higher version of the software Backport: Modification of the software originating from newer versions of the software and also adapted for use in the older version

6.3 ecm4u Support and Maintenance Services

6.3.1. ecm4u is available to the customer for support requests exclusively via the following access channels during service hours:

e-mail (note: the e-mail address of the employee to be notified must have been registered by us beforehand).
ecm4u support website
Telephone/hotline Access addresses and telephone numbers will be provided separately if not already done.

6.3.2. ecm4u will provide support within service hours exclusively by the following means

e-mail
ecm4u support website
telephone/hotline
Provision of downloads on the Internet

6.4 Service hours

6.4.1 Support from ecm4u is available on weekdays, Monday through Friday during business hours from 9:00 am to 5:30 pm.

6.4.2 Within the business hours according to paragraph 6.4.1 a response to support requests will be given within 4 hours.

6.5 Support

6.5.1. ecm4u offers the following support services to the customer:

Free access to bug fixes, patches and updates of the software in the version in use by the customer.
Free access to all available user and administration documentation for the customer's software
Support in case of problems with the software and error analysis
Provision of possible backports of bug fixes
Provision of available enhancements or adaptations of software modules used by the customer for operation with current Alfresco versions as well as software modules of ecm4u that depend on them.

6.5.2. ecm4u is also entitled, but not obliged, to provide the customer with upgrades instead of providing bug fixes, patches and updates, if this eliminates problems that occur or if no bug fixes, patches and updates are available to solve problems for the software version in use at the customer. If an upgrade contains a wider range of functions than the original software, ecm4u is entitled to limit the use to the original range of functions or to provide the upgrade with additional functions only against additional payment.

6.5.3 Insofar as the support includes the provision of software, this shall only be provided to the customer in executable object code. A transfer of the source code is not owed.

6.6 Duties of the Customer

6.6.1 The customer shall provide ecm4u with the information required for support; in order to enable ecm4u to support the customer accordingly. In doing so, the customer shall take all reasonable measures to describe/provide a reproducible error case that can be reproduced by ecm4u.

6.6.2 The customer has to check by himself if patches, updates, bugfixes or upgrades according to your product description are suitable for the operation with the hardware and software available at the customer. If more recent versions of third-party software are required for the use of patches, bug fixes, updates and upgrades, Customer shall procure them at its own expense.

6.6.3 The customer must provide ecm4u with access to the customer's system as far as necessary; in order to be able to analyze and eliminate errors. Access to the customer's system may also be provided by remote access by ecm4u.

6.6.4 The customer is responsible for the correct and proper installation of new program parts, patches and updates, unless ecm4u carries out the installation for the customer by way of exception.

6.6.5 The customer is not entitled to pass on to third parties software which he receives within the scope of a contractual relationship with ecm4u or which is provided by ecm4u without the consent of ecm4u.

6.7 Additional services

6.7.1 Support services performed by ecm4u on behalf of the customer, which do not relate to the software from 6.1, are not part of this contract and must be paid for separately by the customer according to 10.

6.7.2. 1.2 Services which are not part of this agreement are also to be paid for separately according to 10.

6.7.3. ecm4u services are also to be remunerated separately according to 10, if it becomes apparent during the performance of an error analysis of the software that the reasons for the software error do not lie in the software provided by ecm4u, but are the sole responsibility of the customer, e.g. through modification of the hardware and the use of unsuitable hardware or software from third-party providers.

6.8 Term of Contract Support and Maintenance

6.8.1 The contract begins with the order confirmation or invoice and runs for one year. The contract shall be extended by a further year in each case if it is not terminated by one of the parties with one month's notice to the end of the respective contract term.

6.8.2 The right of both parties to extraordinary termination for good cause shall remain unaffected.

6.8.3 Any termination must be in writing.

7. rights of use, third party property rights, indemnification, blocking

7.1 Upon payment in full, the customer acquires the simple, non-exclusive, temporally and spatially unrestricted right to use the software, the work results created by ecm4u for the customer within the scope of the contractual obligations, for his own purposes to the extent stipulated in the contract. Work results in this sense are all performance results capable of being protected by property rights. Transfer of the right of use or sublicensing to third parties requires the prior consent of ecm4u.

7.2 When purchasing software, the customer is entitled to modifications, extensions and other alterations of the software in the sense of § 69c No. 2 UrhG (German Copyright Act) only insofar as this is permitted by law as indispensable.

7.3 Insofar as information, data or other contents of the customer are to be included or used in the software to be supplied by ecm4u or in work results of ecm4u, the customer assures that the information, data or other contents provided by him do not violate any legal regulations and do not infringe any rights of third parties, in particular trademark rights, copyrights, personal rights or other industrial property rights.

7.4 If third parties assert claims against ecm4u due to information, data or other content provided by the customer, the customer must do everything in his power to defend ecm4u at his own expense against the asserted rights of third parties, in particular to indemnify ecm4u against claims of third parties due to possible infringements of rights. The indemnification also includes the necessary costs incurred by ecm4u for legal prosecution.

7.5. ecm4u will inform the customer without delay, to the extent permitted by law, if third parties or authorities assert claims against ecm4u in accordance with paragraphs 7.2 and 7.3.

8. liability

8.1. ecm4u is liable without limitation for intent, gross negligence and in the absence of a warranted characteristic. If the customer is an entrepreneur, the liability for non-intentional acts is limited to the damage typically foreseeable at the time of conclusion of the contract.

8.2 In case of slight negligence ecm4u is liable for injury to life, body and health.

8.3 In addition, ecm4u is liable for slight negligence only in case of breach of essential contractual obligations and limited to the damage foreseeable at the time of conclusion of the contract. We are not liable for other damages caused by slight negligence due to a defect of the service. Any liability for pre-contractual fault (c.i.c.) or under the Product Liability Act shall remain unaffected.

8.4 Irrespective of any fault on the part of ecm4u, we shall only be liable in the event of fraudulent concealment of a defect or from the assumption of a guarantee or warranty. A manufacturer's guarantee is a guarantee of the manufacturer and does not constitute an assumption of a guarantee by ecm4u.

8.5. ecm4u is also responsible for the impossibility of delivery occurring by chance during the delay, unless the damage would also have occurred in case of timely delivery.

8.6 Insofar as liability for damages against ecm4u is excluded or limited, this also applies with regard to the personal liability for damages of the employees, representatives and vicarious agents of ecm4u.

8.7 Unless otherwise agreed in writing, ecm4u software products may not be used in operational processes which must run without interference, in particular in the fields of life support (e.g. medical devices/system control), nuclear technology, weapons systems or other environments in which the failure of the system leads directly to life-threatening situations or personal injury. Similarly, the Software must not be used in environments that result in serious damage to property or the environment. ecm4u does not assume any warranty or liability for such damages resulting from the customer's use of the software contrary to the instructions.

9. data protection

9.1 The customer consents to the collection, processing and use of his personal data, insofar as this is necessary for the fulfilment of contractual obligations.

9.2 If information, data and other contents transmitted by the customer contain personal data of third parties, the customer is responsible for the permissibility of the transfer and processing by ecm4u to the extent required by the contract.

9.3 The customer indemnifies ecm4u against claims by third parties for breach of data protection regulations, insofar as the collection, processing or use of personal data of third parties initiated by the customer violates data protection regulations.

10 Remuneration

10.1 The Customer shall be obliged to pay the agreed remuneration.

10.2 The remuneration shall become due without deduction upon receipt of the invoice, upon commencement of the contract term or upon its extension.

10.3 Unless otherwise stated, the prices listed in offers and other agreements do not include the statutory value added tax.

11. set-off, assignment and right of retention

11.1 The customer is only entitled to set-off if his counterclaims have been legally established or are not disputed by ecm4u.

11.2 The assignment of a customer's claim against ecm4u is only legally effective with the consent of ecm4u or approval; § 354a of the German Commercial Code remains unaffected.

11.3 The customer is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

11.4 The software, documents and data carriers supplied remain the property of ecm4u until payment has been made in full.

12. reference

ecm4u is entitled to name the customer as a reference customer for advertising purposes to third parties in a form customary in the industry.

13. miscellaneous

13.1 German substantive law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

13.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction is the registered office of ecm4u.

13.3 Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.

ecm4u GmbH
Emil-Gärttner-Str. 16
70329 Stuttgart
Telephone: +49 (711) 305 69 71
Fax: +49 (711) 305 69 80
E-Mail: ecm4u-info@ecm4u.de
Managing Director: Heiko Robert