TERMS AND CONDITIONS
Updated on 22/05/2018
eKomi Inc. (‘eKomi’) develops and operates professional aggregation products, rating and feedback systems (the ‘eKomi Rating Systemְ’) as well as other ‘Software as a Service’ (SaaS) services. By signing the order form, the company named in the order form (hereinafter the ‘Company’) agrees to these General Terms and Conditions (‘T&Cs’) underlying the agreement between eKomi and the Company.
1. Scope and Exclusion of Further Terms and Conditions
1.1. For the business relationship between eKomi and the Company in the conclusion of contracts (‘eKomi contracts’), only the following general terms and conditions apply in their version valid at the time of conclusion of the contract, unless otherwise agreed in writing between eKomi and the company.
1.2. Divergent conditions of the company do not apply unless eKomi expressly agrees to their validity in writing.
2.1. Evaluator is a natural person who has concluded an end-user agreement with the Company, either on its own behalf or on behalf of a third party, and who is submitting, has submitted or is entitled to make an evaluation (‘potential evaluator’).
2.2. Transaction-based review is a subjective assessment based on personal experience provided by an evaluator through the eKomi rating system, which
- relates to the conclusion of an end-user agreement with the Company, its execution, termination, reversal and/or customer service in connection with this end-user agreement (‘Merchant Review’), and/or
- relates to the Company’s products, services or other experience that the evaluator has gained from the Company based on an end-user agreement (‘Product Review’).
It consists of a star-based rating system and a comment, and may contain other elements (such as photos and videos) (‘complementary rating elements’).
2.3. Non-Transaction-based review is a subjective assessment based on personal experience that has been submitted by an evaluator through the eKomi rating system, which
- relates to the Company, its execution, termination, reversal and/or customer service without an end-user agreement (‘Merchant Review’), and/or,
- relates to the Company’s products, services or other experience that the evaluator has gained from the Company without an end-user agreement (‘Product Review’).
- It may consist of a star-based rating system and a comment and may contain other elements (such as photos and videos) (‘complementary rating elements’).
2.4. Review conditions & communication rules include the principles, rules and conditions that must be observed by the evaluator for issuing ratings via the eKomi rating system, which are available here.
2.5. Review database is the database of all vendor or product ratings collected on the basis of the eKomi contract. If there are multiple accounts related to the Company, the sum of the ratings recorded in relation to each account will be considered as a standalone rating database.
2.6. Review comment is, as part of the rating, the evaluator’s assessment in free-form text written during the course of the evaluation in addition to the star rating.
2.7. The eKomi seal is a graphical representation of the Company’s status (‘eKomi Status’), which uses a colour scheme to represent the average ratings for The Company over the past 12 months in relation to the Company’s offers. The eKomi seal is only issued for transaction-based assessments generated using the eKomi rating system or a service that complies with the eKomi rating system. The different colors have the following meanings:
- Standard seal: Star rating average < 4.0 or less than 50 reviews
- Bronze seal: Star rating average 4.0 to 4.3
- Silver seal: Star rating average 4.4 to 4.7
- Gold seal: Star rating average of 4.8 or higher
2.8. eKomi certificate page is a company-specific website that displays the eKomi seal, the current rating average (generated solely from transaction-based ratings), and the past ratings of the Company.
2.9. eKomi widget is a web graphic component that integrates with the Company’s web site, which includes a graphical representation of the eKomi seal in combination with a randomly-selected evaluator rating and current rating average. The eKomi widget is only issued for transaction-based assessments generated using the eKomi rating system or a service that complies with the eKomi rating system.
2.10. End-user agreement is a contract between the Company and the evaluator for the purchase of a product or the provision of a service or other experience that is concluded during the term of the eKomi Company offer agreement.
2.11. Customer backend is a password-protected section of eKomi’s website that allows the Company to view the reviews submitted about its business offer and/or its products/services, engage in a dialogue with customers, comment on review texts, adjust account settings, and download scripts for integrating the eKomi widget and eKomi seal, etc.
2.12. Customer dialogue is a non-public communication process that can be initiated by commenting on a review following it’s submission. It gives the company the opportunity to contact an evaluator to discuss the rating with him or her. Participation in the customer dialogue is voluntary for the evaluator.
2.13. User-generated content is content (e.g. texts, photographs, videos, etc.) that eKomi receives from the Company, evaluators or other third parties for the purpose of publication. This includes valuation comments and supplementary assessment elements, company comments and third-party responses to ratings, products, services or companies (‘third-party feedback’). Again, the principles, rules and conditions for issuing ratings via the eKomi rating system, which are available here, apply
2.14. Software as a Service services (‘SaaS’). This is where eKomi acts as a technical service provider. The Company is obligated to check the nature of the commissioned service for legal admissibility. eKomi assumes no liability for this. The scope of service and other conditions are regulated in a special agreement, which is concluded in addition to these terms and conditions.
2.15. Star rating, as part of the overall evaluation, is the evaluator’s rating system using star rating based on a rating scale of one to five stars. These have the following meanings:
- 5 stars = very good
- 4 stars = good
- 3 stars = satisfactory
- 2 stars = unsatisfactory
- 1 star = inadequate
2.16. Star rating average is the calculated average of all star ratings issued in the past 12 months related to a business offer or product. The star rating average is only calculated for transaction-based assessments generated using the eKomi rating system or a service that complies with the eKomi rating system.
2.17. Business offer is the product and service portfolio (e.g. the online shop) of the Company that is subject to vendor reviews based on the eKomi contract.
2.18. Company comment is a notation submitted by the Company regarding any merchant or product rating or user-generated content published on the eKomi certificate page below the annotated rating. The eKomi communication rules apply accordingly.
2.19. Company product is a product, service or other experience offered by the Company that is the subject of product reviews on the basis of the eKomi agreement, whereby it does not matter if the Company is a manufacturer of this product or if it is a product of a third party offered and distributed by the Company.
3. Services by eKomi
3.1. The exact scope of the services to be provided by eKomi is based on the contract offer and the associated service description. Changes to these services during the term of this contract are only permitted with the written consent of both parties.
3.2. The eKomi rating system is provided 24 hours a day, seven days a week, with an annual average availability of 99%. This excludes downtime due to maintenance and software updates as well as times when the eKomi system cannot be reached via the internet due to technical or other problems not within the control of eKomi (force majeure, third party fault, etc.). If it is foreseeable for eKomi that downtime for maintenance and software updates will take longer than three hours, eKomi will notify the Company at least three days before the beginning starting the maintenance in question.
3.3. In the case that the Company is in the position to include or integrate services or offers from third parties in connection with the use of eKomi’s services (‘Third Party Offers’, e.g. integration of Social Media offers, Google Feeds, etc.), only the technical portion of facilitating the integration into eKomi’s services applies. The third-party offers themselves are offered, provided and accounted for by the respective third-party providers, and eKomi does not guarantee their functionality and performance framework.
4. Customer Backend, eKomi Widgets, Interfaces and Software (Programs/Apps)
4.1. eKomi grants the Company access to the customer backend for the duration of the agreement and grants the right to use the customer backend, which is non-sublicensable and non-transferable and limited to the term of the eKomi Agreement.
4.2. Access to the customer backend is granted via login credentials that eKomi provides to the company. The company is obligated to keep the access data and other passwords provided by eKomi confidential from unauthorised third parties and to protect them against access and abuse by third parties. The company undertakes to notify eKomi as soon as it becomes aware that the information has become known to unauthorised third parties.
4.3. To the extent that eKomi provides the Company with computer programs, program codes, documentation, interface specifications or other materials, eKomi grants the company the simple non-sublicensable and non-transferable right to use in accordance with the contract, including the right for reproduction and public broadcast, limited to the term of the eKomi contract, if and insofar as this is necessary in the context of the contractual use.
4.4. The Company is not authorised to make any changes to computer programs, program codes, documentation, interface specifications or other provided materials without the written consent of eKomi.
5. Principles Regarding the Handling of Ratings and User-Generated Content by eKomi
The Company acknowledges the principles set forth below for dealing with ratings and user-generated content by eKomi:
5.1. eKomi stands for professional collection, management and publishing of authentic reviews that reflect actual consumer experiences. The parties agree that the authenticity of the evaluators’ assessments is crucial and, therefore, the subjective views of the evaluators should be respected in the light of freedom of expression, if and to the extent that the evaluations do not violate the communication rules or are otherwise unlawful. Whether a rating is appropriate or inappropriate, factual or unsuitable, is expressly and deliberately not examined.
5.2. eKomi will check all submitted rating comments, as well as any additional rating elements provided, regardless of the associated star ratings, to determine whether they are consistent with the evaluation terms. If there are no indications of violations of the evaluation conditions, the evaluations will be published directly on the eKomi certificate page.
5.3. Checking for unlawfulness of the rating comments as well as other user-generated content is limited to obvious illegalities. Liability for non-obvious unlawful content is excluded. This also applies to the compliance of the content with special statutory provisions, such as the Act on the Advertising of Medical Products, professional regulations, etc.
5.4. If eKomi is notified by the Company or a third party that rating comments or other user-generated content contain illegal content, eKomi will check the contents if the complaint is detailed enough that the legal violation can be easily identified. As part of the assessment and to the extent appropriate to the circumstances, eKomi will consider the comments of the parties, if contact with them is possible. Section5.6 applies accordingly.
5.5. Generally, the inappropriate portion is obscured while retaining the remaining content. In the case of inadmissible content in evaluation comments, the inadmissible content is basically deleted or rendered illegible, e.g. starred out with three asterisks (***), while maintaining the star rating and the other content. Complete deletion of the entire review may be made, if appropriate or warranted, taking into account the circumstances of the case, in particular if a negative star rating is attributed to solely or predominantly assertions in the evaluation commentary which prove to be untrue or which are to be treated as untrue.
5.6. If, in eKomi’s opinion, supplementary evaluation elements violate the evaluation conditions, they will not be published.
5.7. Otherwise, evaluations and user-generated content will not be published or deleted in whole or in part, if and to the extent that:
5.7.1. eKomi or the Company is instructed to do so due to a court decision or an official order;
5.7.2. the Company or the evaluator has been compelled to remove content, or have content removed, due to a cease-and-desist declaration, whereby eKomi reserves the right to review the cease-and-desist declaration and circumstances that led to its submission;
5.7.3. eKomi has reason to believe that the assessments are due to abusive and/or manipulative acts or acts of malintent by the Company or by third parties;
5.7.4. exceptionally, there are circumstances where, under consideration of an individual case, make a deletion or partial deletion appear appropriate, at the sole discretion of eKomi.
5.8. The Company must notify eKomi of alleged inadmissible user-generated content via email to firstname.lastname@example.org upon learning about the incident; eKomi has no obligation to the Company to respond to a complaint by the Company, which is received by eKomi later than 12 months after the publication of the review in question. In that regard, the company has an obligation to review the evaluations made in relation to its Company or products.
5.9. eKomi may allow third parties to submit a rating related to an end-user agreement by sending a rating link if the third party provides suitable evidence of the conclusion of an end-customer contract and a rating for this process is not or is no longer published, or if the evaluator wants to replace a previous rating. However, eKomi will not send the evaluation link if the end-customer contract does not fall into the defined selection group that may have been agreed between eKomi and the Company (Section 5).
5.10. In case of deletion or partial deletion of ratings, eKomi may give the evaluator in question the opportunity to replace their original review. For this the evaluator must provide his or her email within the review process or contact eKomi via the certificate pages. eKomi may also give evaluators the opportunity to subsequently change an already submitted rating.
6. Principles and Obligations of the Company with Regard to Obtaining Transaction-Based Evaluations
6.1.Reviews are usually obtained by sending an invitation to leave an evaluation, through which the Company or eKomi on behalf of the Company, provides a rating link to the potential evaluator. (‘Evaluation Invitation’).
6.2. The company undertakes to create the conditions for the admissibility of sending such evaluation invitations to the evaluator, in particular to obtain the necessary declarations of consent for data protection and all relevant laws (including, but not limited to, competition, advertising, data protection and fair-trading laws) to document the submission of these declarations of consent and to provide them at the request of eKomi. The Company undertakes not to solicit any potential evaluators to submit reviews or have them requested by eKomi if, and to the extent that, the legal requirements for such a contact are not met or no longer exist.
6.3. The Company undertakes to inform the evaluator of the eKomi communication rules and to enforce the evaluator’s commitment to the guidelines. Upon request, the company must provide corresponding proof of this to eKomi.
6.4. Generated review links are valid for six months. After this period, eKomi may disable the links and they may no longer be used to submit.
6.5. The Company undertakes to give all potential evaluators the opportunity to provide a review in relation to the end-customer contract, provided that the legal requirements for doing so are met. An arbitrary selection of potential evaluators may not be made in this respect. If and insofar as the client intends to grant the evaluation option to only a segment of the potential evaluators (‘defined selection group’), the prior written consent of eKomi is required. In this case, the group of potential evaluators should be clearly defined, and the selection criteria should be transparent and traceable on the certificate page from the consumer’s point of view.
6.6. If the main service obligations of the potential evaluator from the end-user agreement (e.g. payment of a purchase price) are provided ahead of those of the Company (e.g. delivery of the goods, down payment), the evaluator must be given the opportunity to provide a review before or immediately after the performance of those duties by the potential evaluator. If the entity fulfils the main service obligation before the potential evaluator provides a rating (e.g. shipping of the products), the potential evaluator shall be given the opportunity to submit an assessment before or immediately after the service has been provided by the Company.
6.7. A retroactive nullity of the Company’s end-user agreement or any future termination of service have no influence on the eligibility of an evaluator to submit a review. However, this only applies if the retrospective nullity was not caused by the evaluator.
6.8. Any kind of undue influence on the evaluator, manipulation of the rating and/or the rating average and any kind of abusive structuring of the rating process are inadmissible. The Company undertakes to refrain from:
6.8.1. offering benefits (price discounts, rebates, vouchers, etc.) to the evaluators or potential evaluators for the submission of positive ratings or the non-issuance of negative ratings,
6.8.2. threatening the evaluators or potential evaluators with disadvantages of any kind in the event of submitting negative assessments,
6.8.3. influencing the rating process in any way or to design it in such a way as to prevent or hinder the submission of negative assessments,
6.8.4. rating itself in relation to its own Company or by directly or indirectly commissioning third parties (including employees of the Company),
6.8.5. otherwise influencing the rating process in a manipulative manner.
6.9. To avoid the situation in which a selection affects the rating results, it is not permitted to interrupt or suspend the rating option during the term of the eKomi contract without the prior consent of eKomi in writing. The Company undertakes to provide potential evaluators with the opportunity to submit ratings throughout the duration of the eKomi agreement. In case of technical interruptions, the company must notify eKomi immediately.
6.10. In accordance with section 15, the Company indemnifies eKomi from all damages resulting from a breach of the obligations arising from Sections 6.1 to 6.8.
6.11. Without prejudice to the right to extraordinary termination (see Section 13.6) and without prejudice to any claims for damages, eKomi can, in the event of a violation of sections 6.1 to 8, immediately prevent the availability of the eKomi widget and the eKomi certificate page, prevent the submission of further ratings, withdraw the eKomi status and block access to the customer backend.
7. Rights and Obligations of the Company to Advertise with Ratings and the eKomi Elements
7.1.The Company acknowledges that eKomi owns all exclusive rights to the eKomi name, the eKomi logo, the eKomi seal and the certificate page.
7.2. Furthermore, the parties agree that eKomi is entitled to all exclusive rights of use as a database manufacturer in terms of copyright about the rating database or rating databases. It is not permitted to duplicate, distribute or publish the rating database or any significant parts of it without the consent of eKomi.
7.3. For transaction-based reviews, eKomi grants the Company the simple, non-transferable and non-sublicensable right to reproduce, distribute and publish
- the name and the ‘eKomi’ brand, the eKomi logo, the eKomi seal in the Company’s respectively current eKomi status (standard, bronze, silver or gold) and the eKomi widget, as well as
- the rating database(s), parts thereof, the individual ratings and the star rating average of the Company
(hereinafter referred to as ‘transaction-based eKomi elements’) on the Company’s own internet presence and other promotional activities relating to the goods and/or services of the related to ratings. Use in relation to offers other than the business offer is not permitted without the prior written consent of eKomi.
7.4. For non-transaction-based ratings, eKomi grants the Company the simple, non-transferable and non-sublicensable right to reproduce, distribute and publish:
- the rating database(s), parts thereof, the individual
- (hereinafter referred to as ‘non-transaction-based eKomi elements’) on the Company’s own internet presence and other promotional activities relating to the goods and/or services of the Company to which the ratings relate. Use in relation to offers other than the business offer is not permitted without the prior written consent of eKomi. It must be made clear to consumers that the ratings are not transaction-based,
- Both transaction-based and non-transaction-based elements are equally referred to as ‘eKomi elements’.
7.5. The above granting of rights is subject to compliance with the obligations contained in Section 7.6 any breach of the obligations under Section 7.6 will result in the immediate expiry of the above rights.
7.6. The Company undertakes to
7.6.1. use the eKomi elements solely as part of or relating to the Company’s offer or products that are subject to the eKomi agreement;
7.6.2. use the eKomi seal, the eKomi widget, and the rating database (and any parts thereof, including individual ratings) exclusively in relation to the business offer or goods and/or services to which the underlying ratings actually refer, as well as committing to not misrepresent eKomi elements which relate to a Company as actually relating to a service and vice-versa. With regards to product ratings, use in relation to identical products is permissible if there is complete equality of design and it is expressly stated that the subject of the presented ratings was a structurally identical product;
7.6.3. not use the eKomi elements in a misleading or abusive way;
7.6.4. to always reflect the actual current score and average for the display of the star rating average and always use the eKomi seal in accordance with the actual current eKomi status;
7.6.5. to always clearly state, in connection with the representation of the eKomi seal and/or the star rating average, which status this presentation corresponds to (e.g. ‘Status as of: 01/08/2016’);
7.6.6. not to make any visual or content changes to the eKomi elements without the prior written consent of eKomi and not to combine them with other logos;
7.6.7. not to present text in connection with eKomi elements, such as alleged quotes from evaluation comments that were not actually made;
7.6.8. to present ratings that accurately reflect the current rating profile;
7.6.9. not to publish any unlawful, discriminatory, racist, sexist, pornographic or violent content on websites or other media in which eKomi elements are incorporated;
7.6.10. to notify eKomi immediately in writing of any indications of illegal content in the rating comments.
7.7. The rights under Section 3 expire upon termination of the agreement. This also applies in the case of termination for breach or cause. After termination of the master agreement, any advertising reference to eKomi is inadmissible. Specifically, it is prohibited to use the eKomi elements and the rating database or to suggest the existence of an ongoing contractual relationship between the Company and eKomi after termination of the contract.
7.8. The Company is responsible for the legal admissibility of advertising with the reviews (including their manner of presentation); in particular, the Company has to check the advertising for its legality under competition and advertisement law (e.g. according to the Act on the Advertising of Medical Products).
7.9. The Company exempts eKomi from all damages and/or claims of third parties in accordance with Section 15, which may result from the fact that the advertising (including the manner) violates statutory regulations. The same applies in the case of a culpable violation of the obligations arising from Section 6.
7.10. Without prejudice to the right to extraordinary termination (see Section 13.6) and without prejudice to any claims for damages, eKomi can, in the event of a breach of obligations arising from Section 7.6, immediately prevent the availability of the eKomi widget and the eKomi certificate page, withdraw or suspend the eKomi status and prevent the submission of further ratings.
8. Company Comments and Customer Dialogue
8.1. Company comments are published visibly on the internet for everyone to see.
8.2. The contents prohibited by the evaluation conditions are also inadmissible in the Company comments. In particular, the Company undertakes not to display untrue, threatening, insulting, abusive, libellous, harassing, racist, offensive, discriminatory, violent, obscene, misleading or otherwise unlawful content as well as any personal or person-related data within the Company’s comments.
8.3. eKomi offers the possibility to connect with evaluators following the submission of a customer dialogue evaluation if the evaluators have left an email address in the course of submitting a rating for this purpose. The evaluators are not obligated to participate in customer dialogue and can terminate the customer dialogue at any time without stating reasons.
8.4. The contents prohibited by the evaluation conditions are also inadmissible in the context of customer dialogue. In the context of customer dialogue, the Company shall refrain from unduly influencing the evaluator and improperly using the customer dialogue; Sections apply accordingly in the context of customer dialogue.
9. Use of the Name and Trademarks of the Company by eKomi; Reference Advertising; Connection to Search Engines and Social Media
9.1. The Company grants eKomi the basic (non-exclusive), non-transferable, non-sublicensable, geographically unlimited right to display the Company’s name and logo (or, if these differ from those of the company, the name and logo of the Company’s offer/product) within the eKomi website, particularly on the Company’s eKomi certificate page, for the duration of the eKomi agreement.
9.2. The Company guarantees and warrants that the above referenced reproduction of the name or logo does not violate any rights, in particular trademark, symbol and copyrights, of third parties and indemnifies eKomi in accordance with Section 15 from all claims and damages arising from the fact that the contractual use of the name or logo infringes on the rights of third parties.
9.3. The Company grants eKomi the basic (non-exclusive), non-transferable, non-sublicensable, geographically unlimited right to display the Company’s name and logo (or, if these differ from those of the company, the name and logo of the Company offer/product) within reference advertising.
9.4. eKomi has the right to feed reviews to our supported search engines and social media platforms.
10. Other obligations of the Company
10.1. At the beginning of the contract, the Company undertakes to provide eKomi with technical implementation of the contractual product swiftly and to provide the necessary contact persons, data and information.
10.2. The Company is obligated to immediately notify eKomi in writing about any changes to the information given at the time of conclusion of the contract (company name, contact address, telephone numbers, email addresses, etc.).
10.3. The Company is obligated to refrain from any activity designed to disable, manipulate, or complicate the use of the eKomi customer rating system.
10.4. The company must immediately notify eKomi of any disruptions and malfunctioning of the eKomi rating system in writing. If malfunctions or functional failures are caused by Company actions, the Company must pay for the services required to remedy them.
10.5. If the Company provides eKomi with photographic or other material for incorporation into the eKomi customer evaluation system (e.g. product photos for display in product ratings), it warrants and agrees that the contractual use of these materials by eKomi, in particular copying and publishing them does not violate any third-party rights, in particular any copyright, ancillary copyright, personality, trademark or design rights. The company indemnifies eKomi in accordance with Section 15 from all claims and damages arising from the fact that the contractual use of the provided materials infringes on the rights of third parties.
11. Data protection
11.1. If eKomi transmits personal data of potential evaluators for the purpose of inviting potential evaluators to submit Reviews, the contractual data collection, processing and use of this personal data by eKomi takes place in the name and on behalf of the Company on the basis of a contract for order data processing, the conclusion of which is a prerequisite for this service provision by eKomi. To that extent, the Company is the responsible body for the collection, processing and use of personal data in this context according to the General Data Protection Regulation (GDPR) and is responsible for compliance with data protection regulations. To this extent, Section applies in particular.
12.1. ‘Confidential Information’ means all information and documents relating to the transactions of the party concerned, in particular financial, technical, economic, legal, tax, business, staff or management information of the other party relating to the affected party or a company affiliated with it (§ 15 of the German Stock Corporation Act [AktG]) and which are marked as confidential or whose confidentiality results from their subject matter or other circumstances.
12.2. Both parties undertake to keep confidential information concerning the other party secret and to use it only for the performance of this contract and the agreed objective. The receiving party is under no obligation to disclose the confidential information, either directly or indirectly, to third parties in any form, whether verbally, in writing or otherwise, unless otherwise agreed between the parties.
12.3. Both parties agree to ensure that all employees and/or third parties with access to the aforementioned business transactions also maintain confidentiality.
12.4. The obligation of secrecy according to Section 2 does not apply to information:
- that was already published at the time of disclosure without having resulted from a breach of confidentiality by the other party,
- which the other party has expressly released for disclosure in writing,
- which the other party has lawfully obtained without any restriction relating to confidentiality from other sources, provided that the disclosure and utilisation of such confidential information does not violate contractual agreements, legal regulations or official orders,
- which the other party has developed on its own without access to the confidential information of the customer,
- that has to be disclosed due to statutory, disclosure and/or publication requirements or official orders. To the extent permitted, the party obligated to do so will inform the other party as soon as possible and assist them as best they can to prevent a breach of disclosure.
13. Conclusion, Term and Termination of the Contract and Consequences of Termination
13.1. For the purpose of the conclusion of the eKomi contract, eKomi will send the company a written offer in the form of a completed order form as well as a detailed description of services (hereinafter collectively referred to as ‘contract offer’).
13.2. The eKomi contract goes into effect upon eKomi’s receipt of the legally-binding order form signed by the Company. The transmission can take place by mail, by fax or by email (scanned copy). The contract is concluded with the acceptance of the application by eKomi. However, the eKomi contract does not take effect if the Company has changed the content of the order form previously submitted by eKomi.
13.3. Subject to agreements to the contrary and regardless of the date on which the eKomi contract enters into force, the contract will commence with the full technical implementation of the eKomi rating system in the Company’s system, however, also no later than four weeks after the conclusion of the eKomi contract, unless the delay in implementation is attributable to eKomi. If the implementation of the contractual product cannot be realised within four weeks after the conclusion of the eKomi contract, unless eKomi is at fault the owed remuneration by the Company is due, even if the company does not make use of the services.
13.4. The eKomi contract is concluded with a minimum term of 12 months, starting with the beginning of the contract year (Section 13.3). It may be terminated by both parties with a notice period of one (1) month before the end of the respective 12-month period. If no notice is given within this period, the contract period will automatically be extended by an additional 12 months.
13.5. Termination must be submitted in text-form (e.g. Email). Termination by the Company can either be announced by email to email@example.com or by mail to ‘eKomi Inc., 9107 Wilshire Blvd., Suite 450, Beverly Hills, CA 90210.
13.6. Both parties reserve the right to extraordinary termination for good cause. An important reason for the extraordinary termination by eKomi exists, if:
- the Company violates an obligation from Sections 6.1 to 6.8 and 7.6,
- payment is overdue by two months after invoicing.
In the event of extraordinary termination by eKomi, the entire outstanding invoice amount until the end of the chargeable contract period will be due immediately in full.
13.7. The sale or abandonment of the business offer and/or the Company itself does not affect the existence of the contract and does not give the right to terminate the contract.
13.8. Upon termination being effective, the Company immediately loses the right to use the eKomi rating system and the eKomi elements. It must immediately refrain from further use of the eKomi elements.
13.9. Even after termination of the eKomi contract, eKomi retains the right to store and process the reviews stored in accordance with the eKomi contract for a period of 12 months after the end of the contract and to link them to platforms of cooperating third parties (e.g. Google).
14. Prices, Billing and Payment Conditions, Recalculation
14.1. The owed fees payable under the eKomi contract are net amounts plus applicable sales tax (Germany), if this is applicable. They are due immediately after invoicing by eKomi. The billing by eKomi takes place electronically.
14.2. Invoicing is made as advance payment for the entire agreed contract period at the time of implementation of the eKomi service or at the time of contract renewal. Unless otherwise agreed, the standard payment method shall be SEPA direct debit. Alternatively, other electronic payment methods are possible after approval by eKomi.
14.3. eKomi’s credit card processing companies meet PCI security standards.
14.4. If the company grants eKomi a SEPA mandate for the incoming payments of the remuneration, payment is made through collection from the bank account of the Company by Novalnet AG, Gutenbergstraße 2, 85737 Ismaning, under the creditor ID: DE53ZZZ00000004253. The pre-notification deadline is reduced to one day. The Company assures that sufficient funds are available via their chosen payment vehicle.
14.5. In case of a return debit, eKomi will charge a fee of USD 20.00 per return debit to the Company, unless the Company is not responsible for the non-payment or the chargeback. The Company reserves the right to prove that damage has not occurred or is substantially lower than this flat fee.
14.6. eKomi reserves the right to charge additional fees for certain payment methods, as agreed in the eKomi contracts.
14.7. If charges agreed in the eKomi contract refer to agreed volumes and these volumes are exceeded during the agreed time frames, the company is obligated to pay the additional fees agreed for this case after appropriate accounting by eKomi.
14.8. If the company defaults on the payment of past due invoices, it is obligated to pay a flat fee of USD 40.00. In addition, eKomi is entitled to interest in the amount of 2% above the respective base interest rate in the event of late payment, unless the Company proves that the interest loss incurred by eKomi is lower. The assertion of further claims for damages by eKomi is not excluded. The flat fee pursuant to sentence 1 shall be set off against any damages owed, insofar as the damage is justified in the legal expenses.
14.9. Increases in personnel and material costs, increases in taxes and general vehicle costs, and increased costs due to inflation can lead to an increase in service prices. Regardless of the reasons mentioned above, service prices may be increased once per contract year by 5%. Such an increase must be announced 4 weeks in advance.
To the extent that the Company is required to provide an exemption under the above provisions, it shall indemnify eKomi from all claims and damages arising from the Company’s culpable breach of its obligations. This includes the indemnification of any claims and demands of third parties asserted against eKomi for or as a result of the breach of duty by the Company, including compensation for reasonable legal defence costs.
16. Installation, Customising and Programming Services
16.1. Insofar as eKomi provides installation, customisation and/or programming services for the Company, eKomi guarantees that the work results are free of material defects. Within the framework of the legal warranty, eKomi is especially obligated to investigate error messages and eliminate defects (rectification). eKomi is entitled to choose replacement instead of repair.
16.2. The responsibility according to Section also applies in the case of customer-specific adjustments, which eKomi carries out for the Company in accordance with the order. There is no liability on the part of eKomi for the legal admissibility of the use of these customer-specific adaptations.
16.3. In the event that eKomi performs customisation and/or programming services on the Company’s systems, such activity shall not violate third party rights to the Company’s systems and system components (especially software). The company indemnifies eKomi in accordance with Section 15 from all claims and damages arising from the possibility that the adaptation or programming services commissioned by the Company violates the rights of third parties.
16.4. If errors occur in the performance results delivered by eKomi, the company will immediately report them and clearly state the information that is useful for the defect detection. If eKomi is unable to remedy the defect or make a clean delivery, eKomi will provide the Company with workarounds. Insofar as these are reasonable for the Company, they are deemed supplementary performance.
16.5. Claims for defects – with the exception of claims for damages – are subject to a limitation period of twelve months. For claims for damages, the provisions of Section 17 apply.
17.1. eKomi is liable without limitation, in accordance with the statutory provisions, only in case of intent or gross negligence, for injury to life, limb or health, according to the provisions of the Product Liability Act and to the extent of a guarantee assumed by eKomi.
17.2. In the event of a slightly negligent violation of an obligation that is essential to the achievement of the purpose of the contract (so-called material contractual obligation), i.e. the fulfilment of whatever makes the proper execution of the contract possible in the first place and on whose compliance the Company can regularly rely, the liability is limited to the amount of damage which is foreseeable and typical according to the nature of the transaction in question. In all other cases, liability is excluded, subject to the provision in 17.1.
17.3. Regardless of the legal reason, eKomi is liable in the event of Section 17.2 for direct property damage up to an amount of Euro 25,000.00 per event of damage and for financial losses up to Euro 10,000.00 per event of damage, but not exceeding Euro 100,000.00 in one contractual year.
17.4. There is no liability on the part of eKomi for the loss of the evaluation database.
17.5. eKomi is not liable for the services provided by providers of third-party offers (Section 3.3).
17.6. Neither party is required to fulfil its contractual obligations in the event of, and for the duration of, force majeure. Specifically, the following circumstances are to be considered as force majeure in this sense:
- fire/explosion/flooding, which is unforeseeable for the party
- war, mutiny, blockade, embargo,
- labour dispute that lasts longer than 6 weeks and was not culpably caused by the party,
- non-party-influenced technical problems with the internet.
- Each contracting party shall immediately inform the other in writing about the occurrence of a case of force majeure.
17.7. The above limitations of liability also apply to the personal liability of the employees, agents and corporate bodies of the contractor.
18.1. The Company may transfer the rights and obligations under this agreement to third parties only with the prior consent of eKomi.
18.2. The contract language is English.
18.3. Governing Law and Venue. This Agreement is governed by and will be interpreted in accordance with the laws of the State of California. The parties to this Agreement expressly exclude the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. The parties to this Agreement unconditionally and irrevocably consent to the exclusive jurisdiction of the federal and state courts located in San Francisco, San Mateo or Santa Clara County, California and waive any objection with respect to those courts for the purpose of any action or proceeding arising out of or relating to this Agreement or the transactions contemplated by this Agreement, and further agree not to commence any such action or proceeding except in those courts.
18.4. If any provision of these General Terms and Conditions becomes ineffective, the remaining provisions remain unaffected. The ineffective provision shall be replaced by one which comes closest to the meaning and purpose of the invalid provision in a legally effective manner.
18.5. The declarations and amendments concerning the eKomi contract and the General Terms and Conditions must be in writing. Termination must be presented in writing. eKomi reserves the right to change the terms and conditions of this agreement, as well as the evaluation conditions for good cause, in particular in response to new technical developments, changes in case law, legal position or any other equivalent cause. Changes to the General Terms and Conditions will be communicated to the Company in writing. They are considered approved if the Company does not object to them within one month of receipt of the communication in writing. eKomi will make explicit reference to this in the notification of the changes. Changes that significantly affect the contractual balance between the parties require the express consent of the Company.