1.1 These general terms and conditions (hereafter referred to as “Terms”) of the company EmailConsul whose registered office is in New York shall apply for all present and future contractual and supply relationships, in particular, to execution, content and performance of IT services and the supply of software licenses between EmailConsul and its customers.
1.2 These terms shall apply exclusively. Conflicting or varying business conditions of the customer are not recognized by EmailConsul unless EmailConsul has confirmed acceptance of their validity in writing.
1.3 For existing business relationships, these terms shall apply from the first time they are referred to for all subsequent business between EmailConsul and the customer, even if EmailConsul has not explicitly referred to these terms in subsequent business deals.
2.1 Offers from EmailConsul are non-binding and without obligation until the final confirmation of the order in so far as no validity date is mentioned in the offer. The order from the customer, whether verbal or written, is a binding offer to EmailConsul. The contract between EmailConsul and the customer comes into existence with the written order confirmation from EmailConsul. Special agreements, side letters or changes always require written confirmation from EmailConsul
2.2 All dates for supplies and performance are non-binding unless explicitly firm dates are confirmed in writing. Deadlines for supply or performance shall commence from the date given in the order confirmation, but not before the complete and proper fulfilment of all duties of the customer, especially the achievement of the technical prerequisites and fulfilment of the duties under the following regulations of these terms as well as the receipt in full of all agreed payments or prepayments in our bank account.
2.3 In the case of force majeure or other unforeseeable, unusual events which are not the fault of EmailConsul (including but not limited to production disruptions, strikes, lock-outs, breach of sovereignty, natural catastrophe et-al.) the dates and deadlines for execution shall be extended for the duration of the interruption and an appropriate restart time. EmailConsul will inform the customer about the occurrence and end of such conditions without delay. Should it become totally or partially impossible for EmailConsul to perform its obligations because of such events then EmailConsul shall be relieved of such obligations to the extent affected. Any pre-payments from the customer will be returned promptly. Apart from such refunds, the customer shall not be entitled to any further compensation.
2.4 The current price list of EmailConsul shall apply in so far as no other price agreement exists in writing. All prices are exclusive of statutory VAT applicable at the time of concluding the contract. If repeated or permanent services are to be performed, the refund of VAT applicable at the time when the relevant performance is delivered shall be decisive.
2.5 In the case of services the said remuneration shall be based on the information received by the user during the initial consult and entered into with a formal agreement depending on the usage required by the user. Expenses must be paid according to the level of expenses specified in the offer. Costs of extra services and services resulting from incorrect or incomplete information by the customer, non-verifiable claims for defect, or inappropriate use of the system shall be borne by the customer.
3.1 The customer has to make available to EmailConsul all information and documentation necessary to perform its obligations, complete and without errors, before work commences. This applies in particular with respect to equipment, plant, programs and parts of programs which have to work with the software to be supplied or created or have an effect on, or are effected by, the results of the consultancy services of EmailConsul. Should, in the opinion of EmailConsul, a need for further information arises in the course of executing the order, then the customer has to provide such information upon a simple request from EmailConsul without causing any delay of such further documents or information. If the customer does not meet this obligation punctually then the customer shall be liable to recompense EmailConsul for the resulting extra work.
3.2 All sales are final, and EmailConsul does not offer any money-back/refund for non-usage of the account. You recognize and agree that you shall not be entitled to a refund for any purchase under any circumstances.
3.3 Changes to the technical requirements originally existing when the order was placed or notified by the customer in the time between the contract coming into existence and the beginning of the performance by EmailConsul or during the execution of the order shall be for the customer’s account. The customer shall be liable to recompense EmailConsul for the resulting extra work.
3.4 The customer is obliged within the framework of the contractual relationship with EmailConsul, to undertake the usual protection measures for the customer’s EDP systems to prevent system damage or data loss, in particular through the use of a suitable anti-virus program and regular data back-ups. Any responsibility from EmailConsul for loss of data is thus legally excluded.
4.1 The description of the scope of supply or performance in the order confirmation shall determine the scope of the obligations of EmailConsul. In as much as the scope of performance of EmailConsul is not limited to the supply and, if necessary, adjustment of standard software, EmailConsul and the customer shall produce an exact description of the intentions of the duty of supply owed by EmailConsul and a specific description of the project and list of obligations including details of the working time involved, the place of operation and other special conditions which must be fulfilled when completing the order.
4.2 The cooperation and support of EmailConsul in the creation of the above description and obligations list is payable by the customer to EmailConsul.
4.3 Data carriers on which software or other program output is stored or defined which are supplied by EmailConsul within the scope of fulfilling the order, as well as the associated manuals, remain the property of EmailConsul until all payments have been made in full. In as much as data carriers become the property of the customer, EmailConsul retains the copyright and all other use and protection rights for the software stored on the or other stored contents unless the customer has been granted certain rights explicitly.
4.4 The scope of supply of EmailConsul involves on-demand software, which is protected by copyright or other commercial protection rights, such as patents, for example. The same applies to other services of EmailConsul, especially individual programming operations. EmailConsul allocates to the customer a non-exclusive, non-transferable right with no time limit for the exclusive own use. With the exception of the rights in the last sentence, all remaining rights for the software and for all results of the services performed for the customer and the services on which they are based as well as all other protected achievements remain with EmailConsul.
4.5 EmailConsul allows the use of its software on one server or the number of server specified in the order confirmation. If the customer exceeds the set number of server even once, then the customer is obliged to pay EmailConsul compensation damages. The rate of compensation damages is calculated as double the cost of usage rights according to the currently valid price list of EmailConsul.
4.6 In as much as the services and supply of EmailConsul also includes third party software or other protected supplies of third parties, the rights of such third parties shall not be affected. The customer is obliged to pay due respect to the rights of such third parties and any applicable usage restrictions. Should the customer be in breach of this obligation then damages resulting shall be for the sole account of the customer. The customer indemnifies EmailConsul against all possible third party claims.
4.7 In the case of a breach of the protected rights of third parties, due payments being delayed or other breaches of contract, EmailConsul can revoke the customer’s usage rights with effect at any time. The customer shall not be relieved of their obligations by this. EmailConsul will restore the revoked rights when all obligations of the customer have been met in full. Should EmailConsul incur costs through this, then these costs must be borne in full by the customer and must be paid in full by the customer.
4.8 The customer is not entitled to copy, duplicate or pass on directly or indirectly to any third party software or other protected material produced or created by EmailConsul without the permission of EmailConsul, nor may the customer reverse engineer, decompile, disassemble, edit, modify, alter or integrate any protected products received from EmailConsul into software or other products in part or in whole. For further information please contact us via email at support at emailconsul.com.
4.9 EmailConsul is not obliged to make available to the customer the source code of the software or program work supplied nor to give the results of preliminary work on which such software is based unless this is promised by EmailConsul.
5.1 The customer is aware that the state of the art makes it impossible to create absolutely fault-free software.
5.2 EmailConsul guarantees that the software or product produced by EmailConsul does not infringe any third party rights. If the use of the software by the customer in accordance with the contract is nevertheless restricted or prevented because of the infringements of valid third party rights then EmailConsul shall have the free choice either to change the supply in such a way that the third party rights are no longer infringed or to replace the software so that such rights are no longer infringed, but that in either case the agreed performance target is still met, or to arrange a license agreement with that third party at its own costs. In the event of disputes between the customer and third parties about infringements of rights or of intellectual property, EmailConsul shall have the lead role and the right to take decisions. Should the customer reach an agreement with the third party or conduct a legal dispute with such parties without the involvement of EmailConsul, then no liability upon EmailConsul can arise out of the total process.
5.3 Any undertakings or guarantees for the technical details of the supplied software or other scope of supply beyond the details in any documentation or the contractual agreements are not accepted by EmailConsul.
5.4 In the event of possible defects EmailConsul is entitled to make two attempts at rectification within an appropriate timescale before the customer can make any further valid claims. A guarantee is excluded if the problem results from circumstances or conditions which are the customer’s responsibility, especially if the customer has failed in his obligation to provide cooperation and support.
5.5 If the newly-manufactured products, products provided for use or their parts sold by EmailConsul have defects at the time when they are made available which cancel or significantly reduce the value or fitness of the product for the contractual use according to the description of service, the customer can only demand the improvement within the framework of liability for material and legal defects first. The products are not considered defective, even if they essentially do not comply with specifications and documentation in their version concerning the affected software.
5.6 The attempt at improvement shall be excluded if the improvement would involve a disproportionate effort. Basically, the improvement shall be made free of charge. If the customer moved the purchased products to another location as its place of residence or business address after delivery, the customer must bear additional costs resulting from the improvement, if moving the products does not comply with their use according to the contract. If the right to improvement is excluded or if the defects cannot be removed by the improvement within 3 months after the notification, the customer can assert the statutory guarantee rights, in particular, demand a reduction of the license fee.
5.7 Consultation and other services are provided by EmailConsul to the best of their knowledge, according to the standards published for the relevant software and service and with the objective to enable the customer to perform its work with the product. A guarantee for successful services shall not be given.
5.8 A complaint about defects must be made in writing as accurately as possible and immediately after the first malfunction or error message, including the information about the operating procedure which led to the malfunction. Own attempts to remove the error usually lead to more serious damages which EmailConsul is not liable for. In particular, EmailConsul shall not be liable for the damages which are attributed to incorrect handling, operation or input, improper installation or use, unauthorised access to source code and use with unapproved operating system or other software in breach of the contract. The commercial obligation to inspect and report defects shall remain unaffected. If the defect which has been complained about transpires as a result of the above-mentioned circumstances, the customer must refund the expenses of EmailConsul incurred as a result according to the relevant rates in the price list for services which is applicable at that time. However, EmailConsul does not have any obligation to perform the relevant service. This shall apply accordingly to the cases when improvements of EmailConsul have been impeded, obstructed or expanded more than insignificantly.
5.9 Any claims under guarantee for defects shall no longer be valid if made later than two months form the date of supply.
6.1 EmailConsul shall remain the owner of all rights to the software transferred to the customer, rights to all parts thereof, or to the software which is entirely or partially derived from the software, including any associated materials. This shall apply, even if the customer changes the software to the extent permitted by the contract or combines it with their own software or such third party software. EmailConsul is free to use and exploit, in particular, publish, copy, expand, process, change the work results, such as computer software, ideas, methods, procedures and know-how obtained within the framework of the customer’s order or through its development, or integrate them with or incorporate them in other software under its own name at its own discretion. The customer must not remove the present identifications, intellectual property rights notes or proprietary notices of EmailConsul from the software, and the customer must also include them in the created copies, if applicable. EmailConsul indemnifies the customer against all third party claims due to the breach of intellectual property rights to the software developed and transferred by EmailConsul in the versions which are compliant with the contract. If such liability arises, it is required that the customer would not make any written or verbal statements to third parties about the breach of the intellectual property rights, in particular, the customer would not recognize any rights or circumstances, and would not accept any liability. Moreover, the customer must not combine the software with third-party software without prior written consent of EmailConsul and must not use the software otherwise than for the intended purpose.
6.2 EmailConsul is entitled to introduce necessary software changes on the customer’s profile at its own cost based on a third-party claim for intellectual property rights. The customer cannot derive any contractual rights from the above. The customer must immediately notify EmailConsul in writing if the breach of intellectual property rights and copyright in the product supplied by EmailConsul is indicated to the customer. The customer can use the software only for its own purposes if it has not been clearly agreed otherwise. The customer can make copies of the transferred software only for backup purposes. Copies of transferred documents, such as documentation, user manuals, etc. can only be made with the prior written consent of EmailConsul. The customer shall be liable to EmailConsul for all damages resulting from the breach of the above-mentioned obligations of the customer.
7.2 Passwords notified by EmailConsul to the customer or its employees are to be kept secret and may not be made accessible to, nor revealed to, third parties. This also applies for the time after the contractual relationship has ended.
8.1 From the time when the contract is concluded, EmailConsul is entitled to refer to the existing contractual relationship and advertise it to the public by including the company name, logo of the customer on the list of references.
9.1 The customer undertakes not to directly or indirectly entice away any personnel provided by the EmailConsul working for the customer under this agreement.
9.2 If the customer violates this prohibition on the solicitation of personnel, he shall pay the customer a cumulative contractual penalty of one year of total compensation of the solicited personnel. EmailConsul shall have the right to demand the actual fulfilment of the non-solicitation clause and the payment of the contractual penalty.
10.1 Offsetting or the application of any right of retention by the customer against EmailConsul are explicitly excluded. Any transfer of rights and legal claims arising from the contract by the customer shall only be valid with the written agreement in advance from EmailConsul.
10.2 The term of the contract shall be determined by a special contract that will be concluded on the basis of these Terms. The statutory provisions shall apply to the early termination of this contract.
10.3 The requirement for a written form in the above conditions is also fulfilled by the electronic communication by e-mail. Later supplements or amendments to the concluded agreements must be in writing. The verbal renouncement of the written form shall be excluded.
10.4 The place of jurisdiction and the place where the contract is deemed to be carried out shall be New York, USA.
10.5 The contractual relationship between EmailConsul and the customer shall be subject to the laws of the State of New York, USA. The regulations of the uniform law on the international sale of goods shall be waived.
10.6 If an individual provision or several provisions of these terms and conditions or further conditions and agreements based on them are or become ineffective, or if they contain a loophole, this shall not affect the validity of other provisions. The economically reasonable and permitted regulation which the contractual parties intended or would have intended according to the sense and purpose of the terms and conditions if they had taken the ineffectiveness or loophole into account, shall replace the ineffective provision or fill up the loophole.