Terms and Conditions of Use

 

 

ecm Market is a trading platform owned by ecm4u GmbH for software and related products and services (hereinafter referred to as the "products"). Suppliers can offer their products to entrepreneurs (hereinafter referred to as the "purchasers") for purchase on the platform. The use of ecm Market is subject to the following terms and conditions, which are broken down into three distinct areas:

A. General terms and conditions
B. Special conditions for suppliers
C. Special conditions for purchasers

A. General Terms and Conditions

Definitions

  • Products: For the purposes of this contract, products are the goods and services in the areas of software and related goods and services tradable on the platform.
  • Entrepreneurs: An entrepreneur is a natural or legal person or a legal partnership that enters into a legal business in their commercial or independent professional activity.
  • Supplier: A supplier is any vendor that provides goods or services for purchase on the platform.
  • Platform: The platform is the Internet presence named ecm Market.
  • Platform operators: is the operator of ecm Market, which is ecm4u GmbH.
  • User: Users are all persons registered on the platform.
  • Apps: Apps is the user’s personal online area.

Scope of Application

A.2.1. These terms and conditions for the platform apply exclusively. Any terms and conditions conflicting with or deviating from these terms and conditions of use are not recognised.

A.2.2. The platform operator is entitled to amend or supplement these terms and conditions of use, where it is not reasonable for the platform operator to continue under the existing terms and conditions of use. The reasons for this include, in particular, any legislative changes or amendments necessary due to changed circumstances. Changes are only permitted if they are appropriate and reasonable for the users. Changes will be communicated to the users with reasonable notice before they become effective. If a user does not object to the modified conditions within 4 weeks of receipt of the amended terms and conditions, the amended terms and conditions shall apply. If the user objects to the amended terms of use, the platform operator is entitled to terminate the contract at the time of entry into force of the amended terms and conditions, if it is not reasonable for the platform operator to continue under the existing conditions of use.

A.2.3. These terms and conditions apply only to entrepreneurs according to § 14 BGB (German Civil Code).

Subject of Performance

A.3.1. The platform is used to facilitate contracts between suppliers and purchasers of products. Contracts concluded via the platform are concluded exclusively between the supplier and the purchaser. The platform operator is not a party to contracts for the purchase or sale of products.

A.3.2. The platform operator is active only as an intermediary between suppliers and purchasers, unless the platform operator is itself active as a supplier of its own products on the platform. In that case, they are a supplier for the purposes of these terms and conditions.

A.3.3. The use of the platform itself is free.

A.3.4. The platform addresses itself only to entrepreneurs according to § 14 BGB. Consumers according to § 13 BGB are excluded from using the platform.

Registration on the Platform

A.4.1. Users must register to make use of the platform. Users must fill in the information marked as necessary truthfully in the registration process. Any details on the company that are still missing are to be completed after the first login via the user profile. For suppliers, any additional conditions according to the special conditions for suppliers (section B) apply.

A.4.2. Untrue statements made by the user during registration will entitle the platform operator to immediately exclude the user from using the platform.

A.4.3. By submitting the registration, the user agrees to the collection, processing, and use of their personal data entered in the course of the registration. The collection, processing, and use of data are performed exclusively in accordance with our privacy policy.

A.4.4. After successful registration, the user is to keep their login data confidential and keep it secret from third parties. The user is responsible for any abuse of their login data based on the fact that they have not sufficiently secured their login data from unauthorised access.

A.4.5. The login data enables the user access to his/her personal online space: apps. This area allows the user to view his/her previous purchases or sales, notifications, and messages, as well as his/her personal user data. In the case of changes to the user's personal information, the user is required to correct these settings in his/her profile on the platform.

Conclusion of Contract

A.5.1. The offers on the platform do not constitute a binding offer to conclude a contract.

A.5.2. The purchaser’s order constitutes a binding offer to conclude a purchase contract, which may be accepted by the supplier or platform operator on behalf of the supplier. The acceptance is made by uploading the order confirmation/invoice into apps and email notification of this to the purchaser.

A.5.3. Upon acceptance, a contract is made between the purchaser and supplier.

Assessment System

A.6.1. By using the platform, users give their consent for other users to give reviews and comments about them and their offers are made publicly accessible to other users. The assessments and comments serve to make the quality of services offered and online sales as transparent and reliable as possible for both purchasers and suppliers. Every user is entitled to make truthful statements about any other user and the services offered regarding their behaviour in online transactions on the platform. The platform operator does not adopt opinions as its own and is not required to review the assessments and is not responsible for the content.

A.6.2. Untrue, offensive, anticompetitive, actionable, or otherwise illegal assessments and comments are not allowed on the platform. If the platform operator becomes aware of this, they have the right to delete the corresponding comments and assessments and to exclude the responsible user from using the platform.

Prohibited Items

A.7.1. The advertisement, sale, or purchase of products contrary to any laws or public decency is not permitted on the platform. In particular, the following illustrative and not exhaustive list of products mentioned may not by advertised or purchased or may only be advertised or purchased given strict restrictions:

A.7.1.1. Products whose advertisement, supply, or distribution violates copyright and related rights, industrial property rights (e.g. trademarks, patents, utility models, and registered designs), antitrust laws and other rights of third parties (e.g. rights to their own image, name, and privacy rights).
A.7.1.2. Products with symbols of unconstitutional organisations and racist material or that which glorifies violence.

A.7.1.3. Products with pornographic or other content liable to corrupt the young.

Liability

A.8.1. The platform operator is liable without limitation for intent and gross negligence. For non-intentional acts, liability is limited to the typically foreseeable damage upon the conclusion of a contract.

A.8.2. In the case of slight negligence, the platform operator is liable for damage to life and limb. In addition, the platform operator is liable for slight negligence only in the case of a breach of contractual obligations and is limited to the foreseeable loss upon the conclusion of a contract. The platform operator is not liable for other damage caused by slight negligence or a fault in the service. Any liability for pre-contractual fault (c.i.c.) or under the Product Liability Act remains unaffected by this.

A.8.3. Regardless of any fault of the platform operator, the platform operator is only liable for the fraudulent concealment of a defect or from the acceptance of a guarantee or warranty. A guarantee in the course of an offer from a supplier is a guarantee from the respective supplier and does not constitute a guarantee issued by the platform operator.

A.8.4. Where liability for damages is excluded or limited for the platform operator, this also applies with regard to the personal liability of staff, workers, employees, representatives, and agents of the platform operator.

Newsletter

A.9.1. Where a user has registered for the newsletter in the course of registration, they agree to receive the ecm Market newsletter to the e-mail address specified in the registration process and to the collection, use, and retention of information for this purpose. The newsletter contains information about innovations within ecm Market, such as module updates, new offers, or other announcements and information from ecm Market.

A.9.2. The user can unsubscribe from the newsletter at any time without stating the reasons for this by using the link at the end of each newsletter.

A.9.3. In addition, the provisions of the privacy policy apply.

Availability of the Platform, Closure of the Platform, and Exclusion of Users

A.10.1. The platform operator assumes no liability of any kind for the fact that the platform or parts thereof are always available and accessible. The users do not have a claim to the use of the platform.

A.10.2. The platform operator is entitled to permanently or temporarily disable the platform in whole or in part at any time, be it for necessary maintenance or the cessation of operation of the platform.

A.10.3. The platform operator is entitled to exclude individual users from using the platform without an explanation.

Applicable Law, Jurisdiction, and Final Provisions

A.11.1. German law shall apply for all claims against the platform operator.

A.11.2. German law, under the exclusion of UN Convention on Contracts for the International Sale of Goods (CISG), shall apply for all claims arising between suppliers and purchasers on the platform contracts, unless the supplier and purchaser have agreed otherwise.

A.11.3. For claims of a merchant, legal persons under public law, or a special fund under public law against the platform operator, the exclusive court of jurisdiction will be the competent court for the registered office of the platform operator.

A.11.4. Should any provision of these Terms be or become invalid, the validity of the remainder of the Terms shall remain unaffected.

B. Special Conditions for Suppliers

Registering as a Supplier

B.1.1. Any entrepreneur that has a properly established and existing business and wishes to sell products on the platform can become a supplier.

B.1.2. To act as a supplier on the platform, the supplier must register on the platform by truthfully entering their information. Upon request from the platform operator, they are to provide proof of the statements to the platform operator through appropriate documentation (e.g. by current commercial register extracts). The supplier then receives an agreement from the operator platform, through which they grant power of attorney to the platform operator to act in the name of the supplier to conclude contracts with purchasers for products placed on the platform by the supplier. In this context, the platform operator only acts as an intermediary. The signed agreement is to be returned to the platform operator in order to successfully complete the registration process.

B.1.3. After successful registration, the supplier is authorised to provide products via the platform, in compliance with the terms of use of the platform operator, and to communicate with purchasers on the platform. For this purpose, the supplier receives login data for his/her personal online space apps from the operator, where all the current products and necessary documents, such as documentation and licensing conditions to be offered and displayed on the platform, are stored.

Offerings of the Supplier

B.2.1. The supplier alone determines the nature and content of the products offered, including their descriptions and advertisements. Descriptions, claims, and guarantees must be truthful.

B.2.2. The supplier must provide at least a product description, a licence certificate concerning the rights of use granted in the offer, and a maintenance and support agreement, unless agreed otherwise between the platform operator and supplier.

B.2.3. The supplier must ensure that the products offered by them are stored in apps in the version described, along with all the necessary materials and documentation.

B.2.4. It is not permitted to incorporate hyperlinks, regardless of their form, to websites outside the platform in offers. This includes the use of texts that are technically not a link, but from which a link is clearly visible.

B.2.5. Where the product offered is software, the supplier has to limit the rights granted to the purchaser to the extent that a transfer of the rights from the purchaser to a third party is excluded, unless exhaustion applies for the respective product.

B.2.6. The supplier must attach a maintenance and support agreement to the offers, which meets the minimum requirements of the platform operator, unless expressly agreed otherwise with the platform operator.

Terms and Conditions of the Contract

B.3.1. The supplier is only entitled to include their own terms and conditions of business in the contract with the purchaser where these terms and conditions are not inconsistent with these terms and conditions of use.

Obligations of the Supplier

B.4.1. The supplier is not allowed to disclose information about the user, he receives during the course of using the platform to third parties or to use the data for direct marketing purposes, including advertising via electronic messages without the user’s consent .

B.4.2. The supplier is obliged to provide an invoice to the purchaser for an order within one business day after receiving notice of the order from the platform operator in its personal online space, apps.

Indemnification and Rights of Use

B.5.1. The supplier indemnifies the platform operators against any third party claims for which the supplier is responsible, e.g. claims of infringement of intellectual property rights, copyright, competition law or other statutory provisions and shall do everything in their power to defend the platform operator against the third party rights asserted against the supplier at their own expense. The indemnification includes an exemption for the necessary costs of legal defence.

B.5.2. The provider shall provide the platform operator a right of use for distribution, public display and reproduction of the content placed on the platform by the supplier, such as product descriptions, photos, screenshots and graphics for use on the platform, the Internet, as well as in other media, such as data storage devices (e.g. CD, DVD, USB stick) or print media; the right of use is not limited in terms of time, space and content.

B.5.3. If the product is to be provided by the platform operator to the purchaser as a download after the conclusion of a contract between a supplier and purchaser, the supplier grants the platform operator the necessary rights for this. These include not only the right to transmit the product to the customer via download, but also the provision and reproduction by the platform operator to this end.

Payment

B.6.1. The platform operator collects the purchase price on behalf of the supplier and forwards it to the supplier following the deduction of the platform operator's commission for services according to the agreed payment period.

B.6.2. Should the purchaser express any objections with regard to the quality of the product, the platform operator is entitled to withhold payment pending the resolution of the corresponding objections between the purchaser and supplier. Where the parties cannot agree and enter into legal proceedings over this, the platform operator is entitled to withhold the money until a legally binding decision is taken.

B.6.3. If the complaints of the purchaser are justified, the platform operator shall return the correct purchase price to the purchaser.

C. Special Conditions for Purchasers

Payment

C.1.1. Payment is to be made in advance.

C.1.2. The purchaser is to transfer the purchase price within 10 working days from receipt of the invoice to the account specified in the invoice without any deductions.

C.1.3. For purchases from suppliers outside the European Union, additional taxes and fees may be incurred, which are to be paid by the purchaser.

Transfer of Product

C.2.1. The product is delivered upon receipt of payment.

C.2.2. For software that is transmitted via download, the transfer is done by sending a download link to a file containing the purchased product where this is available for the customer to access.

C.2.3. For products that are not available for download, the transfer is done by sending the product to the designated address.

Obligation to Give Notice of Defects

C.3.1. If the customer is a merchant, they are obliged to check the downloaded or delivered product for obvious defects. Complaints about obvious defects are to be reported within two weeks following receipt of the product. The timely sending of the complaint is decisive for meeting the deadline.

C.3.2. Hidden defects that are not observed even after the immediate thorough investigation are to be reported to the supplier in writing immediately upon discovery. In the case of breach of duty to investigate and provide notice of defects, the software supplied by the supplier is regarded as approved with regard to the respective defect.

Acceptance

C.4.1. In case of individually created software, the purchaser is to accept the software within two weeks following receipt of the product unless there are serious defects in the product.

C.4.2. Minor defects that do not affect the function and usability of the product do not entitle the purchaser to refuse acceptance.

Complaints

C.5.1. If the customer determines within two weeks upon receipt that the product purchased does not match the description, or has significant defects, they may inform the platform operator of this and request that they do not forward the purchase price paid to the supplier.

C.5.2. Should the purchaser express complaints regarding the quality of the product, the platform operator is entitled to withhold payment to the supplier to clarify the appropriate objections between the purchaser and supplier. Where the parties cannot agree and enter into legal proceedings over this, the platform operator is entitled to withhold the money until a legally binding decision is taken.

C.5.3. If the complaints of the purchaser are justified, the platform operator shall return the correct purchase price to the purchaser.

Rights of Use, Maintenance, and Service Contract

C.6.1. The purchased product may only be used in the context of the usage rights granted by the supplier. Any further use requires the granting of additional rights.

C.6.2. With regard to the maintenance and service of the product, the conditions set in the maintenance and service contract issued by the supplier shall apply.