General Terms and Conditions
CE-CON GmbH – Grundstraße 32 – D – 28203 Bremen
12. Februar 2017
I. Object of the agreement
CE-CON GmbH (hereinafter referred to as CE-CON) provides the customer access to CE-CON Safety (hereinafter referred to as CE-CON SAFETY) for cloud-based use. The use of CE-CON Safety supports customers in risk assessment and documentation according to the EU Machinery Directive.
The provisions of these General Terms and Conditions apply accordingly to other software applications developed by CE-CON, in particular to applications which assist customers in the risk assessment according to the EU Toys Directive, health and safety, environment, to foreign regulations (such as US labor law).
II. Scope, Conclusion
1. These General Terms and Conditions apply to all products or services provided online by CE-CON as far as these orders refer to CE-CON Safety or the other software applications mentioned above (under No. I. ``Object of the Agreement``).
2. As far as CE-CON Safety is provided against payment the application is exclusivly directed to enterprises according to § 14 BGB.
3. Our deliveries, services and offers are made exclusively on the basis of these General Terms and Conditions. The General Terms and Conditions of Business are therefore valid for all future business relations, even if not expressly agreed upon. The inclusion of the general terms and conditions of a customer, which contradict our general terms and conditions, is already being contradicted.
4. Contract language is exclusively German.
5. You can access and print the currently valid terms and conditions on the website https://ce-con.de/unternehmen/infocenter/.
6. The presentation of goods on our website does not constitute a binding application for the conclusion of a service contract. Rather, it is a non-committal invitation to order our services.
7. By clicking the ``Order now payable`` button, you submit a binding offer to conclude a service contract (§ 145 BGB).
8. After receipt of the offer, you will receive an automatically generated e-mail with which we confirm that we have received your order (confirmation of receipt). This acknowledgment of receipt does not constitute acceptance of your offer. A contract is not yet concluded by the confirmation of receipt.
9. A contract comes into force only if we explicitly declare acceptance of your offer or if we release the module you have booked to your use.
III. Services of CE-CON
1. CE-CON Safety is a CE-CON cloud-based software for carrying out the CE certification procedure in accordance with Directive 2006/42 / EC of the European Parliament and of the Council of 17 May 2006 on machinery and amending Directive 95 / 16 / EC.
2. CE-CON Safety is a technical aid to the:
• Identification and selction of relevant standards,
• Identification and analysis of hazards,
• Identification of adequate measures,
• Creation of user information,
• Preparation of technical documentation.
CE-CON Safety does not replace specialist or legal advice. CE-CON does not provide specialist or legal advice.
3. The customer receives a selection list with short descriptions of EU directives and harmonized European standards, which may be relevant for the implementation of the CE certification procedure. The selection list is based on the data from the official pages of the European Union.
4. Due to misleading, ambiguous or erroneous representations in the official pages, e.g. by translation errors with respect to data on coexistence periods, errors or incompleteness of the selection list may occur.
5. The selection lists allow the customer to carry out a risk assessment according to the statutory criteria. All information submitted by the customer to the risk assessment is provided by the customer himself and can not be checked by CE-CON in any way for correctness and / or completeness. The customer is responsible for the correctness and completeness of the information entered.
6. For the communication and the data exchange with the customer, CE-CON provides a website, via the user gain access to CE-CON Safety. The servers used by CE-CON for this purpose are located in computer centers and are connected to the Internet via a complex system architecture. Incoming and outgoing data traffic is routed through routers, load balancers, switches, etc., which each allow a certain maximum data throughput rate. There is no direct connection of individual servers to transfer points in the Internet. The data centers are located within the EU.
7. CE-CON Safety has an export function, which enables you to download the documentation created with CE-CON Safety (PDF). Whether and to what extent the customer makes use - in particular to the fulfillment of documentation and storage obligations - remains solely to the customer.
8. The availability of the website and the data paths up to the transfer point to the Internet is at least 98% of the annual average.
9. CE-CON informs the customer that restrictions or impairments of services provided by CE-CON may occur outside CE-CON's sphere of influence, such as the unauthorized acts of third parties or force majeure. The hardware and software or technical infrastructure used by the customer can have a negative effect on the performance of CE-CON.
10. CE-CON regularly carries out maintenance work on network systems, maintaining network integrity, interoperability of services and data protection. CE-CON will carry out the maintenance work, as far as is possible, in low-usage times. Should longer performance limitations be required, CE-CON will inform the customer of the nature, extent and duration of the impairment.
11. CE-CON reserves the right to change the technical standards and safety features as long as the change serves an improvement in safety, the amendment is required by law or the authorities, or if the change does not entail significant disadvantages for the customer.
IV. Obligations of the customer
1. With the start of the use of the website, the customer has to change the password provided by CE-CON for access to a secure password, which is only known to him, and to change the password regularly during the contract period. Adequate access protection and protection of their data is provided when:
• the password contains at least 7 characters with uppercase letters, lowercase letters and numbers;
• and the password is changed at least every 3 months.
2. The customer has to keep the password securely and to prevent unauthorized access to the password.
3. The customer shall also ensure that no viruses enter the CE-CON systems from his systems. It must not bypass or deactivate CE-CON safety measures. The customer shall report any malfunctions immediately.
4. The customer may only modify contents of CE-CON Safety, if this has previously been expressly permitted by CE-CON.
5. Insofar as the customer uploads documents (especially to the technical documentation) to CE-CON computers, he is not obliged to violate copyrights and other rights of third parties. If CE-CON is used by third parties for an infringement which the customer has or is supposed to have committed, CE-CON will release CE-CON from all claims of third parties on the first demand. The exemption obligation also covers all reasonable costs of legal defense.
6. The customer shall appoint CE-CON with a contact person with an address with an e-mail address and a postal address.
V. Remuneration; Accounting
1. The remuneration for the use of any services provided by CE-CON shall be based on the price list applicable at the time the contract is concluded and the chosen module of CE-CON Safety. All prices are subject to statutory value-added tax. The current version of CE-CON Safety is available to use free of charge.
2. CE-CON shall be entitled to increase the remuneration for the services offered at its discretion (§ 315 BGB) for the first time 6 months after the conclusion of the contract. CE-CON shall be entitled to further increases in remuneration pursuant to § 315 BGB if the last price increase has been at least 6 months.
3. The fees are due for payment before the start of the respective billing period, depending on the module monthly, quarterly or annually. Only after receipt of the first payment is the access for the booked module unlocked.
4. CE-CON sends an electronic invoice per e-mail for each payment process. This shipping is free. If the customer requests the postal delivery of an invoice, CE-CON can charge a fee of € 2.50 per invoice.
5. Payments by the customer shall be made by means of direct debiting. The customer authorizes CE-CON to collect the fees arising from the contractual relationship. If CE-CON does not grant authorization, CE-CON may charge a surcharge of € 3.50 for each invoice.
6. For any unauthorized re-entry, CE-CON may require the customer to pay a compensation of € 10, which will be increased to the actual loss incurred if CE-CON can prove actual higher damages. The customer reserves the right to prove that a damage has not occurred or is significantly lower.
7. In the event of default of payment by the customer with at least two invoices, CE-CON is entitled, without prejudice to other rights, to refuse further service provision and to block its services.
8. If the customer is in arrears with a payment, the customer is obliged to pay the statutory interest on arrears at a rate of 9 percentage points above the basic interest rate. For each warning letter, which will be sent to the customer after the delay, the customer will be charged a fee of € 2.50, unless a lower or higher damage is proved in the individual case.
9. Offsetting of customer's obligations under this contract is only permissible with claims against CE-CON, which have already been legally established or recognized by CE-CON or have not been denied.
VI. Term and Termination
1. The contract between the parties is established for an indefinite period. The notice period for CE-CON Safety depends on the booked module. Unless otherwise agreed, termination is possible with a period of two weeks at the end of the month.
2. If the customer is in default for two successive months with the payment of a not insignificant part of the remuneration, CE-CON can terminate the contractual relationship for good cause without notice. An important reason for termination without notice for CE-CON is also when insolvency proceedings are filed for the customer's assets, opened or the opening is rejected for lack of funds. Rights of termination for important reasons (§ 314 BGB) remain also unaffected.
3. CE-CON will maintain the customer account for purposes of data backup two months after the termination of the contract. After this two months, the customer account will be permanently deleted.
VII. Usage Rights
CE-CON grants the customer a simple and non-transferable right of use for the duration of the contractual relationship with the software CE-CON Safety. The customer is not permitted to grant third parties any rights of use.
VIII. Liability and Warranty
1. CE-CON is liable for intent and gross negligence. CE-CON shall be liable for slight negligence in case of damage resulting from injury or damage to the health of persons.
2. In case of slight negligence, CE-CON shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which allows the proper execution of the contract at first and on which compliance with the customer may be regularly trusted (cardinal obligation) Contract-foreseeable and contract-type damage
3. This limitation of liability also applies to CE-CON's fulfillment allowances.
4. CE-CON shall not be liable for the loss of data in so far as the damage is due to the fact that the customer has failed to carry out sufficient data backup and thereby ensure that lost data can be recovered at a reasonable cost. In so far as the customer is responsible for a loss of data, CE-CON is therefore only liable for the costs of reproducing the data from the backup copies to be generated by the customer and for the restoration of the data that would have been lost even if the data were backed up correctly.
5. In all other respects, the provisions of the service contract law pursuant to §§ 611 ff. BGB apply.
IX. Confidentiality; Data Protection
1. The parties undertake to keep all information and documents, which are legally protected or contain business or business secrets or which are described as confidential, accessible or disclosed by the respective other contract partner prior to or during the performance of the contract, also beyond the contract unless they are publicly aware of any breach of a confidentiality obligation. The parties shall keep and safeguard these subclaims in such a way that access by third parties is excluded.
2. The parties observe the applicable, valid data protection regulations and undertake to oblige their employees in connection with the contract and its implementation to the data secrecy according to § 5 BDSG.
X. Final Provisions
1. All disputes between the parties shall be subject exclusively to the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Jurisdiction for all disputes arising out of or in connection with these General Terms and Conditions, regardless of the legal basis, is Bremen.
2. All changes or additions to these terms and conditions or the underlying contract require the text form (§ 126b BGB). General terms and conditions of business of the customer will only be a contractual component, provided that CE-CON has expressly consented to the text form.
3. The customer is not entitled to transfer this agreement as a whole or individual rights and obligations to third parties or to have it exercised by a third party.
4. CE-CON is entitled to transfer this agreement with all rights and obligations to a company of the CE-CON Group. The transfer shall take effect 28 days after it has been communicated to the customer. When transferring this contract to another company, the customer is entitled to a special termination right that is to be exercised with a term of two weeks after the notification.
5. CE-CON may amend or supplement these General Terms and Conditions at any time. The changes or additions shall be notified to the customer by e-mail no later than six weeks before they become effective. If the customer does not agree with the amendments, he / she can object to the changes with a time limit of one week at the time of the intended impact of the changes or additions in text form. If the Customer does not object, the amendments or additions to the General Terms and Conditions shall be deemed approved by the Customer. CE-CON will notify the customer of the intended meaning of its conduct by means of the notification of the amendment or addition to the General Terms and Conditions.
6. Should individual provisions of these General Terms and Conditions of Business be or become invalid, the effectiveness of the other provisions shall remain unaffected.