Terms and conditions

General Terms and Conditions
Data Privacy Policy

der CE-CON Safety Inc. – 300 Delaware Avenue, Suite 2110 – Wilmington DE 19801 – USA
1st of March 2020

I. Object of the Agreement

CE-CON Safety Inc. (hereinafter referred to as CE-CON) provides the customer access to CE-CON Safety (hereinafter referred to as CE-CON SAFETY) for cloud-based use. The use of CE-CON SAFETY supports customers in risk assessment and documentation.

The provisions of these General Terms and Conditions (hereinafter referred to as GTC) apply accordingly to other software applications developed by CE-CON, in particular to applications which assist customers in the risk assessment according to the EU Low Voltage Directive, health and safety, environment, to foreign regulations (such as US labor law).

II. Scope, Conclusion

1. These GTC apply to all products or services provided online by CE-CON as far as these orders refer to CE-CON SAFETY or the other software applications mentioned above (under No. I. ``Object of the Agreement``).

2. Our deliveries, services and offers are made exclusively on the basis of these GTC. The GTC of Business are therefore valid for all future business relations, even if not expressly agreed upon. The inclusion of the general terms and conditions of a customer, which contradict our GTC, is already being contradicted.

3. Contract language is exclusively English.

4. You can access and print the currently valid terms and conditions on the website www.ce-con.de/en/company/download-centre.

5. Terms of purchasing requested by the client are hereby expressly rejected and shall not become part of this agreement, regardless of CE-CON’s knowledge of such conditions, unless expressly agreed in writing by CE-CON. This confirmation requierement shall still apply if CE-CON supplies goods and services to the customer without reservation, in full knowledge of the customer’s GTC, which conflict with or differ from the present terms. Any written consent by CE-CON shall in each case apply to the individual instance regulated therein.

6. The presentation of goods on our website does not constitute a binding application for the conclusion of a service contract. Rather, it is a non-committal invitation to order our services.

7. By clicking the “Order now payable” button, the customer submits a binding offer to conclude a service contract. CE-CON shall confirm receipt of this order without delay. However this shall not yet constitute the formation of a contract. CE-CON may accept this binding offer by the customer, unless otherwise agreed with the customer, up to 7 days after its receipt by CE-CON by means of transmitting an order confirmation.

8. A contract comes into force only if we explicitly declare acceptance of your offer or if we release the module you have booked to your use.

III. Scope of Performance

1. The software environment within which the software selected by the customer is to be used is defined by the CE-CON product description.

2. A warranty shall only be granted if it has been expressly designed as such and has been declared writing by CE-CON. The properties of the Software shall be as indicated in the CE-CON product description at the time of acceptance of the respective contract. Other information such as technical data, descriptions, illustrations and drawings are subject to constand change, even where these refer to standards. CE-CON shall only be bound by such information where it has been confirmed in advance by CE-CON as binding.

3. Subject to different arrangements agreed in the contract by the parties, the following work shall not come under the subject matter of the agreement:
- Configuration work
- Training
All this work shall be invoiced separately by CE-CON on the basis of current prices for such work.

IV. Services of CE-CON

1. CE-CON SAFETY is a CE-CON cloud-based software for carrying out risk assessements according to international legal requirements.

2. CE-CON SAFETY is a technical aid to the:

• Identification and selection of relevant standards,
• Identification and analysis of hazards,
• Identification of adequate measures,
• Creation of user information,
• Preparation of technical documentation.

CE-CON SAFETY does not replace specialist or legal advice.

3. The customer receives a selection list with short descriptions of European and international laws, harmonized European and international standards, which may be relevant for confromity procedures. The selection list is based on official available.

4. Due to misleading, ambiguous or erroneous representations in the official pages, e.g. by translation errors with respect to data on coexistence periods, errors or incompleteness of the selection list may occur.

5. The selection lists allow the customer to carry out a risk assessment according to the statutory criteria. All information submitted by the customer to the risk assessment is provided by the customer himself and can not be checked by CE-CON in any way for correctness and / or completeness. The customer is responsible for the correctness and completeness of the information entered.

6. For the communication and the data exchange with the customer, CE-CON provides a website, via which CE-CON members gain access to CE-CON SAFETY. The servers used by CE-CON for this purpose are located in computer centers and are connected to the Internet via a complex system architecture. Incoming and outgoing data traffic is routed through routers, load balancers, switches, etc., which each allow a certain maximum data throughput rate. There is no direct connection of individual servers to transfer points in the Internet. The data centers are located within the EU.

7. CE-CON SAFETY has an export function, which enables you to download the documentation created with CE-CON SAFETY (PDF). Whether and to what extent the customer makes use - in particular to the fulfillment of documentation and storage obligations - remains solely to the customer.

8. The availability of the website and the data paths up to the transfer point to the Internet is at least 98% of the annual average.

9. CE-CON informs the customer that restrictions or impairments of services provided by CE-CON may occur outside CE-CON's sphere of influence, such as the unauthorized acts of third parties or force majeure. The hardware and software or technical infrastructure used by the customer can have a negative effect on the performance of CE-CON.

10. CE-CON regularly carries out maintenance work on network systems, maintaining network integrity, interoperability of services and data protection. CE-CON will carry out the maintenance work, as far as is possible, in low-usage times. Should longer performance limitations be required, CE-CON will inform the customer of the nature, extent and duration of the impairment.

11. CE-CON reserves the right to change the technical standards and safety features as long as the change serves an improvement in safety, the amendment is required by law or the authorities, or if the change does not entail significant disadvantages for the customer.

V. Obligations of the customer

1. With the start of the use of the website, the customer has to change the password provided by CE-CON for access to a secure password, which is only known to him, and to change the password regularly during the contract period. Adequate access protection and protection of their data is provided when:

• the password contains at least 7 characters with uppercase letters, lowercase letters and numbers;

• and the password is changed at least every 3 months.

2. The customer has to keep the password securely and to prevent unauthorized access to the password.

3. The customer shall also ensure that no viruses enter the CE-CON systems from his systems. It must not bypass or deactivate CE-CON safety measures. The customer shall report any malfunctions immediately.

4. The customer may only modify contents of CE-CON SAFETY, if this has previously been expressly permitted by CE-CON.

5. Insofar as the customer uploads documents (especially to the technical documentation) to CE-CON computers, he is obliged to not violate copyrights and other rights of third parties. If CE-CON is used by third parties for an infringement which the customer has or is supposed to have committed, CE-CON will be released from all claims of third parties on the first demand. The exemption obligation also covers all reasonable costs of legal defense.

6. The customer shall appoint CE-CON with a contact person with an address with an e-mail address and a postal address.

VI. Formation of Contract; Remuneration; Accounting

1. A contract between CE-CON and the customer shall only be formed upon payment of the license fee for use of the software. Thereafter the customer shall be entitled to use the software pursuant to these General Terms and Conditions.

2. There are no verbal ancillary agreements at the time of conclusion of the contract. Individual agreements (including ancillary agreements, supplements and amendments to these GTC) expressely reached between the customer and CE-CON on an ad hoc basic shall always take precedence over these GTC, to the extent that they have been reached after the conclusion of the contract. A written contract or – in its absence – written confirmation to the customer by CE-CON shall be decisive with regard to the content of such individual agreements.

3. The remuneration for the use of any services provided by CE-CON shall be based on the price list applicable at the time the contract is concluded and the chosen module of CE-CON SAFETY. If additional costs such as duties, taxes, levies or fees charged by third parties should be incurred through acquisition of the software, these shall be met by the customer.

4. CE-CON shall be entitled to increase the remuneration for the services offered at its discretion the first time 6 months after the conclusion of the contract. CE-CON shall be entitled to further increases in remuneration if the last price increase took place at least 6 months ago.

5. The fees are due for payment before the start of the respective billing period, depending on the module monthly, quarterly or annually. Only after receipt of the first payment is the access for the booked module unlocked.

6. CE-CON sends an electronic invoice per e-mail for each payment process. This shipping is free. If the customer requests the postal delivery of an invoice, CE-CON can charge a fee of $ 3.00 per invoice.

7. Payments by the customer shall be made by means of direct debiting. The customer authorizes CE-CON to collect the fees arising from the contractual relationship. If CE-CON does not grant authorization, CE-CON may charge a surcharge of $ 4.00 for each invoice.

8. Any unauthorized use of the software shall be equivalent to a breach of copyright, with the consequence that CE-CON may demand that the customer cease its use and pay compensation of $ 15.00, which will be increased to the actual loss incurred if CE-CON can prove actual higher demages. The customer reserves the right to prove that a damage has not occurred or is significantly lower.

9. In the event of default of payment by the customer with at least two invoices, CE-CON is entitled, without prejudice to other rights, to refuse further service provision and to block its services.

10. If the customer is in arrears with a payment, the customer is obliged to pay the statutory interest on arrears at a rate of 9 percentage points above the basic interest rate. For each warning letter, which will be sent to the customer after the delay, the customer will be charged a fee of $ 3.00, unless a lower or higher damage is proved in the individual case.

11. Offsetting of customer's obligations under this contract is only permissible with claims against CE-CON, which have already been legally established or recognized by CE-CON or have not been denied.

VII. Term and Termination

1. The contract between the parties is established for an indefinite period. The notice period for CE-CON SAFETY depends on the booked module. Unless otherwise agreed, termination is possible with a period of two weeks at the end of the month.

2. If the customer is in default for two successive months with the payment of a not insignificant part of the remuneration, CE-CON can terminate the contractual relationship for good cause without notice. An important reason for termination without notice for CE-CON is also when insolvency proceedings are filed for the customer's assets, opened or the opening is rejected for lack of funds. Rights of termination for important reasons remain also unaffected.

3. CE-CON will maintain the customer account for purposes of data backup two months after the termination of the contract. After this two months, the customer account will be permanently deleted.

VIII. Usage Rights

CE-CON grants the customer a simple and non-transferable right of use for the duration of the contractual relationship with the software CE-CON SAFETY. The customer is not permitted to grant third parties any rights of use.

IX. Liability and Warranty

1. Unless otherwise agreed in these provisions, all compensation claims of the customer or losses of any kind, including for reimbursement of expenses and indirect losses, such as loss of profit, are excluded. This applies in particular to claims for all breaches of obligations resulting from the contractual relationship and from tort. The exlusion of liability shall also apply if CE-CON has used subcontractors or vicarious agents.

2. CE-CON is liable for intent and gross negligence. CE-CON shall be liable for slight negligence in case of damage resulting from injury or damage to the health of persons.

3. In case of slight negligence, CE-CON shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which allows the proper execution of the contract at first and on which compliance with the customer may be regularly trusted (cardinal obligation) Contract-foreseeable and contract-type damage

4. This limitation of liability also applies to CE-CON's fulfillment allowances.

5. CE-CON shall not be liable for the loss of data in so far as the damage is due to the fact that the customer has failed to carry out sufficient data backup and thereby ensure that lost data can be recovered at a reasonable cost. In so far as the customer is responsible for a loss of data, CE-CON is therefore only liable for the costs of reproducing the data from the backup copies to be generated by the customer and for the restoration of the data that would have been lost even if the data were backed up correctly.

6. The exclusion of liability shall not be applicable in respeckt of claims under product liability law. The aforementioned provisions do not entail a change in the burden of proof to the disadvantage of the customer.

X. Right of Retention / Offsetting

1. The right to retain payments on the grounds of any claims of the customer against CE-CON is excluded, unless the right of retention rests on undisputed or final absolute claims of the customer.

2. Offsetting of the customer’s own receivables against receivables of CE-CON shall not be permitted, unless the roght of retention rests on claims of the customer from the same contractual relationshop with CE-CON.

XI. Confidentiality; Data Protection

1. The parties shall protect all information and documents, which are legally protected or contain business or business secrets or which are described as confidential (hereinafter: “Confidential Information”). The customer undertakes to use Confidential Information only for the purposes of the contract concluded with CE-CON and not to circucate it among or otherwise disclose it to third parties without the prior express written consent of CE-CON.

2. The customer is obliged to protect Confidential Information against access by third parties. The customer is obligred to secure from its employees the same obligations to protect Confidantial Information. The customer shall notify CE-CON without delay in writing if it acquires knowledge of an impending or existing breach of the confidentiality agreement or has suspicions to that effect.

3. The obligation to protect Confidential Information shall cease to apply if the customer can prove that
- this Confidential Information was already known to it prior to the disclosure of this information by CE-CON;
- he has legitimately received this Confidential Information from third parties without imposition of a confidentiality obligation and without it having any evidence that the third parties are in breach of confidentiality obligations imposed on these third parties;
- the Confitdential Informatino is generally known or has become generally known without breaching this confidentiality obligation;
- this Confidential Information was or is developed by the customer independently of its dislosure by CE-CON.

4. CE-CON reserves all rights to the Confidential Information (including copyrights, the right to register industrial property rights and patents, utility models, topography rights, design, brands) and rights of ownership to the items made available and containing the Confidential Information (papers, disks etc.). Notwithstanding the rights transferred in this software license agreement, in no case shall rights of ownership, license, reproduction, use or other rights be granted to the customer for Confidential Information of CE-CON, regardless of wether such information is covered by protective rights or not.

5. At the request of CE-CON, the customer shall without delay return all Confidential Information received from CE-CON. An exception applies for copies that must be archived in fulfilment of binding statutory requirements. All Confidential Information present on computers shall be deleted upon request.

6. The Confidentiality obligation shall apply for three years after the end of the contract

XII. Final Provisions

1. The customer is hereby informed that CE-CON will collect, store and process its data to the extend that is necessary to complete the contract and pursuant to applicable data protection laws and regulations, and that this data will be passed to third parties where required in order to fulfil CE-CON’s obligations under this contract.

2. CE-CON shall be entitled to amend the contents of these GTC with the customer’s consent, provided the changes, while taking CE-CON’s interests into account, are reasonable for the customer. Agreements to the customer has not objected to the change within six weeks of receipt of the change notice. CE-CON shall be obliged to inform the customer via change notive of the consequences of a failure to object.

3. CE-CON may assign its rights under this contract to one or more third parties.

4. The customer is not entitled to transfer this agreement as a whole or individual rights and obligations to third parties or to have it exercised by a third party.

5. The law of the State of Delaware shall govern the interpretation of this contract and the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

6. The place of performance for the obligations under this contractual relationship is the domicile of CE-CON in Wilmington, Delaware.

7. The parties agree that any dispute, controversy or claim arising out of this Agreement shall be sttled by arbitration in the State of Delaware, by three arbitrators, one appointed by the customer, one appointed by CE-CON, and the third by the other two arbitrators, pursuant to the rules of the American Arbitration Association. The decision of the arbitrators shall be final and binding upon the parties. Costs of the arbitration shall be shared equally by the parties, unless the arbitrators determine that such costs shall be otherwise assessed.

8. Should individual provisions of these General Terms and Conditions of Business be or become invalid, the effectiveness of the other provisions shall remain unaffected.

9. The warranties set forth herein are in lieu of all other warranties, expressed, statutory or implied, all of which are hereby disclaimed and excluded by CE-CON, including without limitation any warranty of merchantability or use and all obligations or liabilities on the part of CE-CON for damages arising out of or in connection with the use, repair, or performance of the product. The sole and exclusive remedies for breach of any and all warranties and the sole remedies for CE-CON’s liability of any kind (including liability for negligence) with respect to any product or service covered by this warranty shall be limited to, at CE-CON’s sole discretion, repair or replacement of such product or CE-CON’s refund of fees collected for such service. In no event shall CE-CON’s liability of any kind include any special, indirect, incidental, or consequential losses or damages, even if CE-CON shall have been advised of the possibility of such potential loss or damage.

10. Warning: Severe injury or death will result if CE-CON’s products are misapplied, misinstalled, or misused. Read all installation manuals and comply with applicable regulations, codes, and standards regarding proper application, installation, and use of CE-CON’s products.

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