Registration, User Account, Contract of Use
The use of the Licensor’s software requires the creation of a system by the User (the “Account”) or, at the request of the User, a representative of the Licensor. The User Agreement shall come into effect upon creation of the Account following completion of the registration process, including these Terms and Conditions. By creating an account (trial system or licensed system), the User agrees to receive emails from the Licensor. These emails may include messages about the account or for marketing purposes and are part of your relationship with us. You agree that all notices, agreements, disclosures, or other communications that we provide to you electronically satisfy any legal communication requirement, including without limitation any requirement that such communications be in writing.
The User is responsible for the accuracy of the information provided by him/her and undertakes to update his/her information without delay or to inform the Licensor of any changes in the information.
The User is responsible for actions taken under his account, unless he is not responsible for these actions. The user is also responsible for the use by third parties which is made possible through the fault of the user.
The User is bound to notify the Licensor immediately in case of fraudulent or otherwise unauthorized use of his account and change his access password immediately.
The Licensor shall not be liable for damages resulting from the use of the account by third parties, with or without the User’s consent, unless the Licensor is responsible for the use by the third party.
The Licensor stores the data and messages stored on its platform on behalf of the User. The data will be stored until the end of the license period (test licenses, paid licenses, archive licenses), beyond that there is no obligation to store the data. The user can delete all or parts of the data himself at any time or informally request the Licensor to delete the data. Licensor shall protect the integrity, confidentiality and security of the User’s confidential information at an appropriate level of protection, taking into account the state of the art, implementation costs and the nature, scope, circumstances and purposes of the processing as well as the varying probability of occurrence and severity of any risks.
The Licensor is entitled to mention the User’s company name and logo as a reference in its communication media. The user grants the Licensor the necessary rights of use free of charge. The user may revoke this authorization at any time by email to the Licensor.
Services and License
Our services allow you and other users to create, store, send and share marketing or other communication content, including email messages, photos and videos and other materials. Except for the license you grant below, you retain all rights in and to your Marketing Content. You grant to the Licensor a non-exclusive, royalty-free, worldwide, fully remunerated, sublicensable license to use, reproduce, adapt, publish, translate, distribute and display your Marketing Content to the recipients or audiences specified by You or otherwise in accordance with the settings You specify in the Services.
You may not create, publish, store or share marketing content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. When using the Services, you may import data, including personal information, about your contacts (as defined below) (“Contact Information”). We will use your Contact Information only to provide Services to you and at your direction, and will not share your Contact Information with any third party except as follows:
- We may share contact information with our third party service providers to provide our services or administer the site.
- We may disclose contact information because we believe that it is necessary to comply with a court or governmental subpoena, warrant, or order.
- We may receive requests from individuals not to receive emails from our services. In order to comply with international data protection laws and to respect their requirements, we will add these individuals to our exclusion list so that they may no longer receive email from our Services. If a requesting person is a contact in your database, we will use commercially reasonable efforts to notify you of such a request before we add that contact to our list.
Packages, Additional Services and Remuneration
The customer concludes the license agreement for one license package at a time. The User may choose between different license packages, each of which differs in price, duration, functionality, the number of eCards (email with link to the dynamically generated, digital card) and the number of users and may be extended by additional options (e.g. additional eCards, users or functions). Depending on the license package chosen by the User, emails sent by the User may contain a reference to Power eCard (e.g. logo).
The license packages have different durations of use. Depending on the license package, the term ends automatically or is extended by the booked period. The license packages have different functionality. The functionality is defined in the service description of the respective license package at the time of purchase. The service description can be viewed on the Licensor’s website at www.power-ecard.com.
The license packages each have a certain eCard volume. The eCard volume is the maximum number of eCards that may be sent by the User depending on the license package purchased by the User. If the User does not make use of the eCard volume, it expires by the end the license perdio. In addition, there is a limitation of number of users within the system. Depending on the license package the User is able to add additional user accounts with different access rights in his Power eCard system.
Other additional servies
The Licensor offers further services (“Add-Ons”) such as consulting services or services for the design of eCards, which can be purchased independent from the software license.
The rights of use of all commissioned templates and eCard designs are linked to the use of the services for the User. In particular, these may not be stored on the User’s own servers or used by other service providers.
By concluding a user agreement for a license package, the user has to pay the agreed remuneration to the Licensor in advance for the entire duration of the licence period. For other additional services, the User shall pay the remuneration to the Licensor as agreed.
The prices displayed on the websites are without fees and plus any applicable value added tax. Additional fees may be charged.
Transmission and processing of data
By accessing or using our services, you consent to the processing, transmission and storage of information.
Contract for commissioned data processing
With the registration of the User, the two parties have concluded a contract which entails that the processor processes personal data on behalf of the User. The subject and duration of the order as well as the type and purpose of the processing result from this main contract.
The duration of this contract for commissioned processing shall depend on the duration of the main contract, unless the provisions of this contract impose obligations going beyond this.
Prohibited activities on the Services
You will not violate any applicable law, contract, intellectual property or other third party rights, and you are solely responsible for your conduct while accessing or using our Services. If you access or use our Services, you will not:
- Commit harassing, intimidating, reckless or stalking behavior in any way;
- Impersonate any person or entity, including, without limitation, an employee ofthe tLicensor, or falsely state or otherwise misrepresent your affiliation with any such person or entity
- Use or attempt to use another user’s account without authorization from that user or Licensor;
- Not access the Services through the industry standard or Licensor’s approved application program interfaces;
- Use our Services in a manner that could interfere, disrupt, negatively impact or prevent other users from using our Services to their fullest extent, or that could in any way damage, disable, overburden or impair the functionality of our Services
- Delete or revise any materials, including marketing content, posted by any other person or organization;
- Author attributions, legal notices, or copyrighted terms or labels that you upload, delete, or modify in any Communication Feature;
- Register, subscribe, register or attempt to register, unsubscribe or cancel any party’s registration, subscription, or attempt to register, subscribe, unsubscribe or attempt to unsubscribe for any Licensor product or service unless you have been expressly authorized to do so by such party;
- Reverse engineer any aspect of our Services or take any other action that may identify the source code or circumvent measures to prevent or restrict access to any portion of our Services;
- Attempt to circumvent content filtering techniques we use or attempt to access features or areas of our Services to which you do not have access;
- Develop or use third party applications that interact with our Services without our prior written consent, including scripts designed to delete or extract data from our Services;
You represent and warrant that your access to and use of the Services complies with all applicable laws, rules and regulations, including but not limited to those relating to privacy and the sending of electronic communications. You further represent and warrant that you have a lawful basis for processing and sending marketing content and communications to your customers and business contacts who consent to receive marketing communications from you or on your behalf (“Contacts”), whether by legally appropriate consent or otherwise. You will not provide, upload to the Service or take any other action with respect to such marketing content or contact information that you do not have a lawful basis to process, authorize or consent to in accordance with applicable data protection laws. You (and not the Licensor) are responsible for ensuring that you comply with all notification and consent requirements to send communications to persons in the jurisdictions in which they reside.
While you may use our Services to manage and access consents and other contact information, you acknowledge and agree that you, and not the Licensor, are solely responsible for maintaining all records relating thereto. It is your sole responsibility to determine whether our Services are suitable for use in light of laws and regulations governing your business, industry, or relationship with your own contacts, including but not limited to consumer protection, privacy, advertising, intellectual property, or other laws. You may not use our services for illegal or discriminatory activities, including actions prohibited by the Federal Trade Commission Act, the Fair Credit Reporting Act, the Equal Credit Opportunity Act or other laws governing commerce.
If you believe that anyone using the Services is in breach of these Terms, please notify us immediately by emailing [email protected].
Limited License; Copyright and Trademarks
Our services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein are the property of, or licensed to, the Licensor, and are protected by copyright. Except as expressly stated in these terms and conditions, the Licensor reserves all rights in our services and content. You are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use our Services and Content for (i) your personal use or (ii) as a business or organization to communicate with your contacts about your business or organization. However, this license is subject to these Terms and does not include the right to (a) sell, resell or commercially exploit our Services or Content; (b) copy, reproduce, distribute, publicly perform or publicly display Licensor Content, except as expressly permitted by us or our licensors; (c) modify the Content, remove any proprietary notices or marks, or otherwise use our services or Licensor Content in any other manner; (d) use any data mining, robots, or similar data gathering or extraction methods; and (e) not use our services or Content for its intended purpose. Any use of our services or content not expressly authorized in this document without our prior written permission is strictly prohibited and terminates the license granted herein.
If a third party asserts against the User that the Software infringes the rights of such third party, the User shall notify Licensor immediately. The User shall not be entitled to acknowledge such third party claims before giving Licensor a reasonable opportunity to defend itself against the claims asserted by the third party in another manner.
If the Software actually infringes the rights of third parties, Licensor shall, at its own discretion and at its own expense, take into account the interests of the User, either to provide the User with the necessary rights of use in the relevant third party right or to use the Software in such a way that it no longer infringes the right of the third party concerned. If this is not possible, item 9 shall apply accordingly.
The User‘s claims for liability for defects shall remain unaffected.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about our products or services are non-confidential and become the sole property of Licensor. We own exclusive rights, including all intellectual property rights, in and to Feedback and are entitled to use and distribute the Feedback without limitation for commercial or other purposes without acknowledgment or compensation.
It is our policy to restrict access to our services and terminate the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes upon any intellectual property rights that you own or control, you may notify the Licensor’s designated agent as follows:
Intended Representative: Timm Dollinger
Address: Adlerstrasse 41, 70199 Stuttgart
Phone number: 0711 47097630
Email: [email protected]
Limitation of Liability
The licensor is only liable for damages caused intentionally and by gross negligence and only to the extent that it is mandatory by law. Liability for direct or indirect consequential damage, financial loss, loss of profit or damage due to business interruption is excluded.
The licenser does not assume any liability for damages caused by errors, defects or improper installation of third-party software.
The User shall not be liable for defects if the User has made changes to the Software or had them made by a third party without the prior consent of the Licensor or if the Software is used by the User for a purpose not covered by the license agreement and if the change or the use contrary to the terms of the agreement is solely responsible for the occurrence of the defect.
The strict liability of Licensor for defects existing at the time the Software was made available is excluded.
The Licensor shall be liable without limitation for damages for intent and gross negligence, regardless of the legal grounds. In the case of simple negligence, Licensor shall only be liable for damages resulting from injury to life, body or health, as well as for damages resulting from the violation of a contractual obligation, the fulfillment of which is essential for the proper execution of the Agreement and on the fulfillment of which the other party regularly relies or may rely. In the event of a breach of such an essential contractual obligation, liability shall be limited to the replacement of the foreseeable, typically occurring damage is limited to three times the value of the license and liability for foreseeable indirect damage, in particular loss of profit, is excluded. The limitations of liability do not apply in the case of fraudulent intent or claims under the Product Liability Act.
The User is obliged to regularly back up his data to a reasonable extent. The frequency of the data backups is determined by the User on his own responsibility, exercising the diligence of a conscientious businessman. The licensor’s liability for loss of data is limited to the typical restoration effort that would have been required if the User had made regular backups in accordance with the risks involved.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Licensor and each of our respective officers, directors, agents, partners and employees from and against any and all losses, liabilities, claims, demands, damages, expenses or costs arising out of or related to (a) your access to or use of our Services; (b) your marketing content or feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of anyone else’s rights (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify Licensor’s parties of any such third party claims, to cooperate with Licensor’s parties in the defense of such claims, and to pay all fees, costs and expenses (including but not limited to attorneys’ fees) associated with the defense of such claims. You also agree that parties of Licensor have control over the defense or settlement of any third party claims. This indemnification is in addition to, and not in lieu of, any other indemnification set forth in any written agreement between you and Licensor.
Changes to these Terms
We reserve the right to make changes to these conditions from time to time. If we make changes, we will post the changed terms in our services and update the “last updated” date above. We may also attempt to notify you by sending an email message to the address associated with your account or by sending you a notification of our services. Unless otherwise specified in our notice, the amended terms will take effect immediately and your continued access to and use of our services after the notice will confirm your acceptance of the changes. If you do not agree to the amended terms, you must cease accessing and using our services.
We reserve the right, without prior notice and at our sole discretion, to terminate your right to access or use our services. We are not responsible for any loss or damage resulting from your inability to access or use our services.
Should individual clauses in this contract be or become invalid, this shall not affect the validity of the remaining provisions. The invalid clause shall be replaced by that which comes closest to the intended purpose of the contracting parties.
This agreement contains all arrangements. Oral collateral agreements have not been made. Changes to the contract must be made in writing. Place of jurisdiction is Stuttgart, Germany. German law applies.