Terms & Conditions
General Terms & Conditions for eMM-Xpress
All deliveries and services supplied by e-Xpress-mailer GmbH (hereafter e-Xpress-mailer) are provided only on the basis of these General Terms & Conditions (T&Cs). Changes, additions or secondary agreements must be in writing to be deemed valid.
e-Xpress-mailer has the right, in agreement with the customer, to change these T&Cs in as far as such changes can be considered just and reasonable for the customer, taking the interests of e-Xpress-mailer GmbH into account. Agreement is deemed to have been reached if the customer does not object to the changes within four weeks after receipt of the communication concerning the changes. In this communication, E-Xpress-mailer undertakes to make the customer aware of the consequences of any failure to raise an objection.
The full text of the changed T&Cs may be made known by e-Xpress-mailer by means of a link that permits the text to be called up in the Internet.
e-Xpress-mailer operates eMM-Xpress for the customer on an own server platform located in a professionally equipped computing center chosen at the discretion of e-Xpress-mailer. e-Xpress-mailer takes responsibility for all maintenance and repair tasks necessary to maintain operation. These specifically include monitoring of a correct level of availability, functionality, performance and security as well as the implementation of measures to maintain operation. Specifically excluded from these responsibilities are data backup, software support and training as well as the modification or extension of the software with additional functions (unless agreed differently).
e-Xpress-mailer has the right to make changes to eMM-Xpress as long as these serve the purpose of securing functionality. This does not apply when the corresponding measures are not just and reasonable for the customer. E-Xpress-mailer has the responsibility to inform the customer in advance in timely fashion of these corresponding measures.
The customer receives access to eMM-Xpress via a fixed Internet address. Access is protected by a user name and a password. For security reasons, the customer must change these, keeping them strictly confidential, after his first dial-in access. If, due to a fault on the part of the customer, third parties are able to use e-Xpress-mailer services by misusing the access data, the customer is liable to e-Xpress-mailer for both a usage fee and indemnity.
The purchaser must observe all legal regulations, particularly those limiting the distribution of content, and all provisions relating to data protection.
The customer receives a single, non-exclusive right to use eMM-Xpress and its ordered components, limited to the agreed period of validity. The customer may only use eMM-Xpress for his own purposes. Transfer to a third party or mutual use by the same, whether in totality or partially, is not permitted. eMM-Xpress remains under the ownership of e-Xpress-mailer.
Usage fees as stipulated in the current eMM-Xpress pricelist apply. All amounts stated are subject to the statutory value added tax (if applicable). Fixed fees are due monthly in advance and variable fees are due monthly after receipt of invoice. Collection of usage fees may only be through the medium of debit note or credit card. If services supplied by e-Xpress-mailer to the customer are not regulated in the pricelist, these must be agreed upon before provision of said services.
Charge-back debit notes for which the customer is responsible are calculated by e-Xpress-mailer at face value according to the current pricelist, unless the customer can prove that no, or considerably less, loss was incurred.
If a customer is in arrears of payments for more than 30 days without authorization, e-Xpress-mailer has the right to suspend all services until the outstanding demands have been met. The suspension period does not lead to or imply a lessening of these demands.
e-Xpress-mailer retains the right to make adjustments to prices. Should these adjustments involve a price increase, the customer will be informed in writing at least four weeks in advance before these come into force. Should the customer not be in agreement with any increase in prices, he has the right to terminate the contractual arrangement in non-regular fashion at the point in time in which the price change comes into effect.
Period of validity
The period of validity of use of eMM-Xpress begins with the licensing of the access data to the customer and is valid for an undetermined period. Initially, it can only be terminated in a regular fashion after 12 months have passed, cancellation having been made three months before it becomes applicable (unless otherwise agreed). After the minimum period of validity has passed, the advance cancellation period is agreed to be three months, commencing from the end of the month. The right of the contracting parties to terminate the contract in non-regular fashion for important reasons remains unaffected by this. Cancellations or terminations must be made in writing to be deemed valid.
e-Xpress-mailer guarantees 99% availability for eMM-Xpress averaged across a year. Excluded from the above times during which eMM-Xpress cannot be reached due to technical or other problems lying outside the area of influence of e-Xpress-mailer (Acts of God, faults by third parties, etc.)
For eMM-Xpress, e-Xpress-mailer guarantees an average transmission performance of 10,000 e-mails, each of 20 kilobyte, per hour, as long as the remote station recipient (Internet Service Provider, company mail server, etc.) accepts the e-mails immediately without introducing delay.
e-Xpress-mailer recommends recording a maximum of 100,000 profiles in the database, since otherwise the size of the database may have a negative effect on transmission activity and import and export performance. The holding of more than 200,000 profiles in the database is not possible.
e-Xpress-mailer carries out regular attempts to send e-mails, but cannot guarantee successful delivery due to the structure of the Internet. e-Xpress-mailer only transmits the e-mails and does not check their contents from the legal, factual or any other perspective.
e-Xpress-mailer guarantees that eMM-Xpress is free from defects that prevent or reduce value or suitability for normal usage. A negligible reduction in value or suitability will not be taken into consideration. The customer is aware that the state of the art in this technology does not permit a program that is completely free of errors to be created.
Faults or defects must be reported by the customer immediately upon discovery. The customer will make available to e-Xpress-mailer all documents and information required by e-Xpress-mailer for analysis and remedy of the fault, and will assist e-Xpress-mailer in remedying such faults to the best of his ability. Reported faults will be remedied by e-Xpress-mailer within an acceptable period.
If a service that is to be provided defective, e-Xpress-mailer is obliged to rectify the defect. If such rectification does not work, the customer, after setting a reasonable deadline and awaiting its passing, is entitled to lower the agreed usage fee as appropriate. The customer is entitled to prematurely terminate the contract if the defective service or unsuccessful remedying of same interrupts operation completely or to a large degree, i.e. the fault can be classified as impeding operation or as extensively impeding operation.
If testing shows that no fault or defect is present for which e-Xpress-mailer is responsible is present, e-Xpress-mailer is entitled to demand indemnity according to the hourly rates contained in the applicable eMM-Xpress pricelist.
e-Xpress-mailer commits to handling data received in a completely confidential manner, to only use this data for the purposes agreed upon, not to pass on this data to third parties, to return the data in its entirety and to delete it completely from its own computers upon customer request. e-Xpress-mailer can only guarantee data security in online transmission when this data is transmitted in sufficiently encrypted form.
Exemption from liability
The customer must reimburse e-Xpress-mailer for all damages caused by rights violation (including, but not only, sending e-mails to recipients who have not given permission to do so) should the violation have been caused by the customer. Reimbursement also includes the appropriate legal fees for any legal defense necessary. e-Xpress-mailer will immediately inform the customer as to whether e-Xpress-mailer itself, or a third party, will pursue such claims and will give the customer the opportunity to respond.
Should a rights violation have been proven, e-Xpress-mailer is entitled to terminate the contract without notice, this being deemed sufficient reason. Any indemnity claims by e-Xpress-mailer on the customer remain unaffected.
Limitation of liabilities
e-Xpress-mailer is liable, in accordance with applicable product liability laws, for violation of its duties if such violation is deliberate or due to gross negligence, health impairment or bodily harm, or due to the lack of a warranted characteristic in so far as the purpose of this warranty was to protect the customer against such damage within the statutory framework.
Unless the foregoing has not been regulated otherwise, the liability of e-Xpress-mailer is limited to low-level negligence relating to predictable, typical and direct infringements of a normal nature for the type of service. This also applies to low-level infringements caused by e-Xpress-mailer lawful representatives and assistants. Liability for low-level negligent infringement of insignificant duties is in general excluded.
e-Xpress-mailer can only be held liable to the degree delineated in the previous paragraphs for the loss of data and programs and their recovery, and only in as far as such loss could have been avoided by appropriate and acceptable customer preventative measures having been taken, particularly daily backup for data recovery purposes.
Indemnity claims are subject to a limitation period of one year from the point in time when the customer, as the injured party, is made aware of the loss and the circumstances from which his right to make a claim arise. Even if this awareness process is not taken into account, such claims can only be made within a period of two years following the event causing the loss.
Force majeure (Act of God)
Should e-Xpress-mailer be unable to provide the services agreed upon, or be unable to provide these in timely fashion, due to industrial action, force majeure, war, civil commotion or other, then e-Xpress-mailer will not be subject to legal consequences. As soon as the hindrance or interruption ceases to apply, e-Xpress-mailer must again immediately provide the services without special demand to do so, notifying the customer in written form.
These T&Cs are subject to the Laws of the Federal Republic of Germany and exclude unitary UN purchasing rights (CISG). The Court of Jurisdiction for all claims is that of the City of Munich.
e-Xpress-mailer GmbH, T&Cs version 1.0.3