Terms of use (EyeC ProofText)

General Terms and Conditions of Use of EyeC ProofText of EyeC GmbH

Area of Application
1. EyeC GmbH, Amsinckstraße 71 b, 20097 Hamburg, Germany, offers under the brand “EyeC”, among other things, online services for the execution of document comparisons for companies and governmental agencies (“EyeC Services”). The specific EyeC Services are named in the respective order.
2. EyeC's offer is expressly and exclusively directed at entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law. EyeC's Services are not directed at consumers within the meaning of § 13 of the German Civil Code (BGB).
3. Any deviating, supplementary or conflicting general terms and conditions of business introduced by customer do not form part of the contractual relationship between the customer and EyeC, unless such terms and conditions have been expressly acknowledged by EyeC and their inclusion has been permitted. Even the execution of an order without objection does not imply any agreement to the inclusion of other general terms and conditions. EyeC hereby objects to any inclusion of third party terms and conditions.
Subject Matter of the Contract
1. EyeC shall provide the customer with the version of the EyeC software specified in the order for use. Unless a different date is agreed upon in the order, the term of the contract shall begin on the first day of the month following the date of the order. The EyeC software consists of server software and, depending on the agreement, may consist of different software clients for different operating systems or a pure web-based client (“Client Software”). The software clients covered by the license are specified in the respective order.
2. EyeC grants the customer the non-exclusive, temporally limited, spatially unrestricted and non-transferable right to access the server software and the EyeC Services by means of the Client Software. The transfer of this access option, e.g. by passing on the Client Software and/or any access data, is only permitted if this has been expressly agreed upon in an individual contract, otherwise use is permitted exclusively by the customer and the customer’s employees. Any transfer to affiliated companies shall also require the express permission of EyeC.
3. To the extent that additional software clients have been agreed upon within the scope of the order beyond the use of a purely web-based client, EyeC grants the customer the non-exclusive, spatially unrestricted right, limited in time to the term of the contract, and non-transferable right to reproduce the Client Software for the platforms covered by the respective order, in accordance with the respective tariff, and to make it available to the customer's employees for use on their end devices via the customer’s own or third-party delivery systems.
4. Apart from expressly provided configuration options, the customer is not entitled to modify or edit the server software or the Client Software. The customer does not receive a copy of the server software and has – apart from the use of the Client Software – also no claim to the surrender of the server software. The customer receives exclusively the Client Software for use in executable object code and has no claim to the transfer of the source code without a separate agreement. The customer is also prohibited from decompiling or reverse engineering the Client Software and the server software. § 69d of the German Copyright Act (UrhG) remains hereby unaffected.
Scope of Use
1. The customer is entitled to have the software used by the number of concurrent users agreed in the order (“Concurrent User”). Concurrent Users means the number of the customer's employees who simultaneously log on to the EyeC Service via the Client Software; no specific act of use beyond logging on is required. In this case, the use is not bound to certain employees, but can be carried out by any employees of the customer. EyeC shall provide access data for the customer's employees to use the EyeC Services in accordance with the agreement in the order. In addition, EyeC may also offer personal licenses (“Named User”). These may only be used by the registered user and may not be given to third parties. The customer may only allow third parties to use the EyeC Service if this is expressly provided for in the order. The transfer of use to affiliated companies is also only permissible with the express prior consent of EyeC.
2. Instead of providing the customer with individual access data, EyeC is free to provide the customer with the option of generating access data for the customer’s employees to the extent agreed upon.
3. With the exception of web-based access to the EyeC Service, the delivery of Client Software to users is not the subject of EyeC's contractual performance and is the sole responsibility of the customer. The customer may also use the services of third parties for this purpose. EyeC shall support the customer in this respect, if necessary, within the framework of a separate agreement.
4. In particular, the customer may not use the software beyond the agreed-upon scope of use or have it used by third parties or make it accessible to third parties. In particular, the customer is not permitted to reproduce the software or parts thereof for third parties, to sell it or to make it available for a limited period of time, to rent it or to lend it. The customer is also not permitted to make access data to the EyeC Service available to third parties.
5. EyeC may take reasonable technical measures to protect against any use not in accordance with this agreement. The contractual use of the services may not be impaired by this.
6. In the event that a user exceeds the scope of use in breach of contract or in the event of an unauthorized transfer of use to third parties, the customer shall, upon request, immediately provide the provider with all information available to the customer for the assertion of claims due to the use in breach of contract, in particular the name and address of the user.
7. Unless otherwise agreed upon, the storage space for documents and event data of the customer is limited to 25 GB per year, per payed licence
Support Services
1. EyeC shall provide the customer with a service hotline or e-mail address as a means of contact in the event of technical failures or other inquiries regarding the product during service hours. Outside of service hours, requests will only be processed in the event of a system failure. In these cases, the answer is not necessarily provided by the service employee.
2. If the customer wishes to use EyeC's support services outside of service hours, the costs are to be based on an individual agreement. Unless otherwise agreed upon, service hours are Monday-Friday, excluding public holidays, at EyeC's registered office from 9am-5pm.
3. The customer shall also name a responsible contact person who is authorized to make and receive declarations on behalf of the customer. This contact person is to be named in the order and can be changed by the customer by corresponding notification in text form
4. EyeC can also provide an online ticket system for contacting the service representative. The provision of telephone support is not owed.
5. EyeC is responsible for the operation of the server, its functionality and its connection to the Internet. EyeC shall ensure that the server software has an availability of 98.5% of the time on an annual average, whereby announced maintenance times will not be deducted in the calculation of availability. Only the system protocols of EyeC's servers are decisive for the assessment of availability.
6. EyeC shall give reasonable notice of maintenance periods and carry out maintenance outside the period between 8am – 6pm. During maintenance periods, updates of the EyeC service are installed and necessary settings are made on the server system. To the extent that maintenance work must be carried out immediately for technical, legal or security reasons, EyeC shall reduce such work to the necessary minimum and inform the customer of the downtime and availability.
7. EyeC shall deliver new versions of the Client Software immediately as they become available. Delivery can also be made by sending download access to the new Client Software versions. Updates of the server software will be announced to the customer as soon as it is foreseeable when they will be available. Announced changes for a new version of Client Software or server software are non-binding and no legal claim to implementation of the announced changes arises for the customer from the announcement, unless this has been expressly agreed between the parties.
User Fees
1. Unless otherwise agreed, the user fee is payable in advance for one year and is to be paid without deduction within 14 days of invoicing. The invoice will be issued at the beginning of the new license year. The license fee depends on the model chosen in the order.
2. If it subsequently becomes apparent that the license fee charged in advance was set too low, e.g. because the agreed-upon number of Concurrent Users was exceeded, EyeC shall invoice the license fee in excess thereof with 14 days' notice and invoice the following year on the same basis.
3. Offsetting is only permitted with undisputed or legally established claims. The same applies to the assertion of a right of retention.
4. EyeC may prohibit the customer from further use of the EyeC Services for the duration of any default in payment exceeding one month. This does not constitute a withdrawal from the contract.
5. All other services provided by EyeC that exceed the agreed-upon scope of services and/or are marked as separately remunerable, such as consulting services, customization of the software to meet operational requirements, training and support, shall be offered separately upon request.
6. In the event of a grossly negligent and unjustified notice of defect by the customer, EyeC may charge the customer for the expenses incurred in processing such notice in accordance with the currently applicable price list for service work.
Industrial Property Rights, Data Protection and Confidentiality
1. EyeC is the owner of all industrial property rights to the licensed software products as well as the trademark “EyeC” and the product names “Proofiler” and “ProofText”.
2. The customer shall not infringe upon any trademarks or other proprietary rights registered or used by EyeC.
3. In the course of providing services, EyeC may have access to personal data of the customer or the customer’s employees; this shall apply in particular if the documents processed by the customer contain personal data or the customer uses personalized access data. In this case, the parties shall conclude a order processing agreement within the meaning of the GDPR at the request of the customer. As a general rule, EyeC does not provide access to or use of personal or communications data other than login data and personal master data. EyeC shall make the order processing agreement available by email or link on EyeC's homepage. The completed and signed Order Processing Agreement must be returned to EyeC.
4. All personal or company-related data in connection with the use of the software belong exclusively to the customer. This also applies to the processed documents that are processed and stored as part of the EyeC Service. If at all, EyeC shall process such data exclusively on behalf of the customer.
5. Insofar as the customer provides EyeC with data within the scope of support or grants EyeC access thereto, such data shall be used exclusively for troubleshooting, system maintenance and quality improvement. If the data also contain personal data, the Terms and Conditions of Support at EyeC shall apply, which may specifically regulate the handling of such data. We reserve the right to use anonymous data for the purpose of further developing our products and services.
6. The customer shall inform all users who have access to EyeC's Services about the Terms and Conditions of Use and the handling of personal data. EyeC shall make the Terms and Conditions of Use available by email or link on EyeC's homepage.
7. “Confidential Information” means any information contractually exchanged between the parties, whether oral or written, which is designated as confidential or which, by reason of the circumstances of the communication, is to be considered confidential, including without limitation the provisions stipulated herein. In particular, documents processed within the scope of the EyeC Service are also considered Confidential Information. Confidential Information does not include information that:
  (a) was demonstrably known to the other party prior to the transmission of said information without being subject to a confidentiality agreement;
  (b) becomes public knowledge during the term of the contract, without any breach of contract by the parties;
  (c) was developed independently during the term of the contract by employees of the parties who did not have access to the Confidential Information; (d) was disclosed by the disclosing party to third parties without a confidentiality agreement; and
  (e) are required to be made public by an enforceable order or other decision of a court, authority or other governmental organization. In the latter case, however, the addressee of the decision shall inform the other party thereof without delay and provide the other party with appropriate assistance in the context of the legal challenge to such a decision. In principle, all technical information is included under Confidential Information, unless it is distributed under an open source license.
8. The receiving party shall treat all Confidential Information as strictly confidential and shall not use it or make it available to third parties except for the purpose of fulfilling the contract. The receiving party may only make the information available to its management, employees and consultants, insofar as these are also subject to confidentiality in accordance with these regulations and insofar as these are concerned with the issues of this contract. The receiving party shall take all reasonable steps to prevent unauthorized use of the Confidential Information and shall promptly notify the disclosing party of any suspected unauthorized use or transmission.
9. EyeC may name the customer as a reference customer using the customer’s logo on EyeC's website and in EyeC’s other forms of presentation for as long as the contractual relationship exists. If the customer is permitted to transfer to third parties, this also applies to these third parties and the customer is obliged to ensure this.
Liability & Warranty
1. EyeC is liable to the customer without limitation in the event of intent or gross negligence for all damages caused by EyeC or EyeC’s legal representatives or vicarious agents.
2. In the event of slight negligence, EyeC has unlimited liability in the event of injury to life, limb or health.
3. EyeC is otherwise liable only to the extent that EyeC has culpably breached a cardinal obligation. Cardinal obligations are obligations that make the proper execution of the contract possible in the first place, the breach of which endangers the achievement of the purpose of the contract and compliance with which the other party may regularly rely on.
4. In the event of liability pursuant to Section 7.3, liability is limited to the foreseeable, typically occurring damages.
5. Any liability according to the regulations of product liability law remains unaffected.
6. Strict liability for defects which existed at the time of the conclusion of the contract (§ 536a Paragraph 1 of the German Civil Code (BGB)) is excluded.
7. The processing by the EyeC System does not exempt the customer from a possible content check of the documents, since the EyeC System does not perform a content check, but only a comparison with templates.
Term
1. The term arises from the respective order. If no other term is agreed upon, the contract is concluded for a term of 2 years and can be terminated for the first time with a notice period of one month to the end of the term. Deviating periods of notice can be agreed upon in the order. If the contract is not terminated, it is extended for a further year at a time. The right to terminate for cause remains unaffected.
2. Notice of termination must be given in writing.
3. The customer may export the data stored in the EyeC System, in particular the results of the document comparison, for documentation and archiving purposes. Any comparative documents are to be provided in PDF-file format unless otherwise agreed upon. The customer is only entitled to download the data for a period of one month after the expiry of the contract term, after which EyeC shall irretrievably delete the data unless otherwise agreed. EyeC reserves the right to archive the data as evidence of EyeC’s own performance until any warranty claims against the customer become time-barred; EyeC shall not use the data for any other purpose.
Changes to these Terms and Conditions of Use
1. EyeC reserves the right to amend or extend these Terms and Conditions of Use at any time with effect for the future, provided that this is necessary and does not disadvantage the user and is not contrary to good faith. An amendment may be necessary, in particular, to make adjustments to take account of a change in the legal situation. Recent court decisions are also considered to be a change in the legal situation. Changes and further developments of the EyeC Services may also make it necessary to amend or supplement these Terms and Conditions of Use.
2. Any amendment or change to these Terms and Conditions of Use shall be announced in text form in an appropriate manner at least four weeks before it comes into force. As a rule, the notice of the amendment or change to these Terms and Conditions of Use is to be announced by email.
3. The user has the right to object, vis-a-vis EyeC, to any change or amendment within four weeks after notification of said change or amendment. In the event of a timely objection, both parties may terminate the contract extraordinarily in accordance with the termination provisions of these Terms and Conditions of Use. Any other right of termination remains unaffected. If the user does not object within the objection period or if the user continues to use the services thereafter, the change or amendment shall be deemed accepted and shall become part of the contract.
4. EyeC shall inform the user separately about the possibility of objection and termination, the time limit to object and the legal consequences thereof, in particular with regard to a failure to object, in the information concerning the changes to the Terms and Conditions of Use.
Miscellaneous
1. The place of jurisdiction for all disputes arising out of and in connection with this contract is the competent court at EyeC's registered office, provided the customer is a merchant, a legal entity under public law or a special fund under public law.
2. All prices are subject to the statutory value added tax, unless otherwise stated.
3. This contract is subject to the law of the Federal Republic of Germany to the exclusion of the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods.
4. EyeC may assign this contract to a subsidiary by written notice to the customer, provided that such subsidiary is at least 50% owned by EyeC. In the event of such a transfer, the acquiring company shall assume all rights and obligations of EyeC, whereby EyeC shall continue to be jointly and severally liable with the transferee for any liabilities already incurred at that time.
5. If any provision of these General Terms and Conditions of Use is or becomes void, invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions shall not be affected thereby