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General Terms and Conditions of eKomi Ltd.

As at: 14. January 2016 • 3nd Version

Print GT&C
  1. Scope, contracting party, use of services

    1. These general terms and conditions (“GT&C”) apply to the use of the services (“eKomi Services”) offered by eKomi Ltd. ("eKomi") under different domains (eKomi.de, ekomi-us.com etc.) ("eKomi Websites") as well as via mobile applications (so-called apps). Contracting party of the user is the eKomi Ltd., whose contact details may be found under http://reputami.com/en/imprint. These GT&C govern the contractual relationship between the user and eKomi, regardless of which of the eKomi Websites or mobile applications the user used for registration or to log in.

    2. The GT&C shall also apply if eKomi Services are accessed from outside of the Federal Republic of Germany or if access to eKomi Services is completely or partially enabled from other websites or mobile applications.

    3. In relation to eKomi general terms and conditions contrary or deviating from these GT&C shall only apply if eKomi agrees to them expressly and in writing.

    4. The user may access, print and download these GT&C at any time, even after conclusion of the contract, via the following link located on the Reputami Websites "http://reputami.com/en/tos".

  2. Scope of the Reputami Service

    1. General scope of services

      Against payment eKomi offers to such user registered on a eKomi Website or via mobile application the service according to the terms of these GT&C to filter out and analyze opinions, statements, reviews and similar comments ("Customer Reviews") publicly accessible and expressed within the World Wide Web, e.g. in selected social media services, review sites and image services ("Data Sources"). The specific scope of the eKomi Services provided to the user depends on the current design of the eKomi Services (right of eKomi to determine performance) as well as the respective service package booked (see http://reputami.com/en/pricing) Moreover, the scope of the services due by eKomi is also subject to the other provisions of this Section 2.

    2. Within the scope of the eKomi Services, customer reviews regarding the objects of evaluation (e.g. retail store) listed in the respective service packages may be collected ("Evaluation Objects”).

    3. Scope of identification and consideration of Customer Reviews, selection of Data Sources; no verification of Customer Reviews or authors

      eKomi itself does not create Customer Reviews, but confines itself to the identification of Customer Reviews in publicly accessible media of the World Wide Web as well as to their evaluation according to an algorithm determined by eKomi. In addition to the algorithm, eKomi determines the Data Sources in which Customer Reviews shall be identified; such Data Sources are displayed to the user as part of the selection of the service packages. The user may select from the Data Sources provided by eKomi. Within the scope of services eKomi does not guarantee to identify all Customer Reviews. It is also noted that authors of individual Customer Reviews may object generally or in particular cases to the inclusion of their respective Customer Reviews into the eKomi Services; as a result eKomi may be obliged to remove these Customer Reviews both retroactively and for the future. Furthermore, eKomi does not perform any verification of the authenticity, accuracy, completeness, legality and of other properties of the opinions expressed or of their authors and said verification is therefore not part of eKomi’s scope of services. eKomi may also at its sole discretion exclude individual Customer Reviews from the evaluation if their inclusion may distort the evaluation according to the reasonably judgment of eKomi (e.g. such Customer Reviews made by the user about himself or herself or which are contradictory and therefore not relatable).

    4. No review of Data Sources and content of linked external websites regarding legality and possible damage

      The contents of linked external websites and Data Sources do not constitute proprietary information or content from eKomi. eKomi does not survey the content of linked external websites and Data Sources with respect to its legality or possible malicious content and programs.

    5. Calculation of eKomi Rank

      eKomi calculates the so-called eKomi Rank within the scope of eKomi Services for the Evaluation Objects selected by the user. The eKomi Rank results from an algorithm determined by eKomi in consideration of the Data Sources selected by eKomi therefor. When calculating the eKomi Rank, for instance the Data Source and associated range as well as activity and range of the author of a Customer Review are taken into account.

    6. No permanent storage of Customer Reviews by eKomi

      eKomi has no influence with respect to a permanent storage of identified Customer Reviews in the respective Data Sources. Permanent storage of Customer Reviews on eKomi’s own servers is also not included in eKomi’s scope of services. Therefore, if a Customer Review is removed directly from the Data Source it cannot be used for evaluation within the scope of eKomi Services.

    7. Obligations of user to co-operate regarding the performance of individual eKomi Services

      In part, the scope of services of eKomi Services depends on which data the user provides to eKomi for the performance of the eKomi Services. If for the use of certain services, e.g. sending messages via Foursquare, the user’s login credentials for the specific Data Source are required use of such services is only possible if and to the extent respective login credentials are provided to eKomi by the user.

    8. Right of eKomi to alter the evaluation algorithm and Data Sources to be evaluated

      The algorithms and Data Sources underlying the eKomi Services are, due to new findings on evaluation algorithms and changes in the value of the Data Sources, dynamic and may be altered during the term of the contract or of the individual service packages. Range and importance of individual Data Sources may decrease in the course of time and therefore be removed from the evaluation. In addition, eKomi may be obliged to remove individual Data Sources from the evaluation and therefore from its services offering due to statutory and/or private law provisions, e.g. statutory provisions regarding data protection or the terms of use of individual Data Sources. The eKomi Rank may change due to alteration of the algorithm and/or of the Data Sources relevant for the evaluation (e.g. by incorporating new Data Sources in the calculation of the algorithm) with effect for the period of time expired before the aforementioned alterations. eKomi does not save any eKomi Rank that existed before any alteration; therefore it is the user’s responsibility to secure his or her past data and evaluations.

      The principles applicable to the alteration of the eKomi Rank in the immediately aforementioned paragraph apply mutatis mutandis to other calculations and analysis performed within the scope of eKomi Services.

    9. Right of eKomi to modify individual features of the eKomi Services

      eKomi is interested in the continuous improvement and optimization of its services in favor of the user so as modifications, extensions or removal of individual features of the eKomi Services may occur at any time.

    10. The eKomi Tip

      As part of eKomi Services, individual references known as a "eKomi Tip" are displayed occasionally. These references are proposals of a general nature and cannot consider all details of the specific case. Therefore the eKomi Tip shall not be considered an advice in an individual case so that the potential implementation of eKomi Tips is the exclusive responsibility of the user.

    11. Hardware and software specifications required for the use of eKomi Services

      Use of eKomi Services requires certain hardware and software specifications of the user which the user must ensure according to Section 3.7.

    12. No commissioned data processing for the user; no obligation to supply data

      With respect to data protection law, eKomi is the controller regarding personal data processed in connection with the performance of services. In relation to the user eKomi does not provide commissioned data processing according to § 11 of the Federal Data Protection Act (BDSG). Data collected and used within the framework of eKomi Services are subject to the data protection authority of eKomi or as the case may be the respective Data Source applicable or of the respective author.

    13. Availability of the eKomi Website, maintenance

      100% availability of the eKomi Website is technically impossible to achieve. Therefore the eKomi Website’s constant availability, accessibility and its freedom from defects, at any time, is not included in the scope of services of eKomi. Due to maintenance or security-related and technical circumstances (such as capacity overloads, system failures and impairments) as well as other events that eKomi has no control over (e.g., errors or failures in the field of public communication and electricity networks), transmission or access delays or failures may occur. However, eKomi strives to keep the eKomi Website constantly available.

      eKomi limits its services temporarily if required due to capacity limits or with respect to the security or integrity of the server or to execute technical measures and serving a proper or improved performance of services (maintenance work). In these cases eKomi will take into account the legitimate interests of the user, e.g. by providing advance notice.

      The provision of this Section 2.13 shall not affect the general liability of eKomi as defined within the limits of Section 9 (Limitations of liability) of these GT&C.

  3. Registration and requirements thereof, conclusion of the License Agreement, obligations of the user

    1. Registration and conclusion of the License Agreement

      Use of eKomi Services initially requires registration as a user. Registration is free of charge and is carried out through registration and the opening of an associated user account on the eKomi Website upon consenting to, amongst others, these GT&C. By sending the completed registration form, the user submits his or her offer for conclusion of the License Agreement regarding the eKomi Services. If eKomi accepts this offer by sending a confirmation email, a contract regarding the use of eKomi Services is thereby concluded between the user and eKomi ("License Agreement"). Further details regarding additional requirements for the user and the scope of the License Agreement are contained in this Section 3 and the following Section 4. The user is not entitled to the conclusion of the License Agreement.

    2. Limitation of registration to entrepreneurs

      Registration as a user is permitted for entrepreneurs within the meaning of § 14 German Civil Code (BGB) only, therefore only natural or legal persons as well as partnerships with legal personality, who or which, when entering into this License Agreement, act in exercise of his or its trade, business or profession. In case of a registration of a user account on behalf of a company the registering natural person has to confirm that he or she is authorized to open an account on behalf of the company. Each user may only create one account. Registered users are permitted to enable own staff members or staff members of external service providers to (co-)use their existing user account. This requires the registration of said persons with eKomi under specification of at least the first and last name as well as a valid email address.

    3. Further details in case of use of service packages

      If the user wants to make use of a service package after registration, he or she must add additional data to the data provided during registration in particular full address details as well as data necessary for performance of payments or verification of entrepreneurial status (e.g. VAT identification number). If applicable, companies shall complement their data with selected details from the commercial register.

    4. Obligation of the user to provide truthful information and to update data

      In the context of the registration and use of eKomi’s services the user is obliged to provide truthful and complete information regarding such data and circumstances requested during registration and incidentally in these GT&C. Any changes of all above mentioned data must be communicated to eKomi without delay or request on the part of eKomi by updating the corresponding information in the user profile, by email or by letter.

    5. Obligation of the user to safeguard login credentials; non-transferability of the user account; invitation to users to share the user account

      The user is obliged to safeguard his or her login credentials in a manner preventing access by unauthorized third parties. In particular, he or she is obliged to keep his or her password secret. A user account is non-transferable. However, the user may invite other persons to use his or her account to the extent provided for by eKomi.

    6. Additional information

      eKomi reserves the right to request additional information or information deviating from the provisions of this Section 3 regarding the user during registration or the use of eKomi Services as well as evidence for the purpose of verifying the information of the user.

      Ensuring technical requirements on part of the user

      It is the responsibility of the user to ensure that he or she meets the technical requirements for the use of eKomi Services (web browser, terminal, JavaScript enabled, cookies allowed). These can be found at http://reputami.com/en/requirements.

  4. Subject matter and scope of the License Agreement, service packages, term and termination

    1. Subject matter of the License Agreement, use of eKomi Services

      Upon conclusion of the License Agreement the user is entitled to use the eKomi Services in accordance with the scope of the services referred to in Section 2 as well as the other provisions of these GT&C. The eKomi Services will be provided on the basis of individual service packages for a consideration. The user may use the eKomi Services only for those purposes which can be attributed to his or her commercial or self-employed activity.

    2. Service packages, their term, auto-renewal and termination

      On the basis of this License Agreement the user may claim the service packages offered by eKomi (see http://reputami.com/en/pricing). The service packages are associated with a minimum term. After the expiry of the minimum term, the term of the service package is extended automatically (also more than once) by the period of the respective minimum term (e.g. for another month in event of a minimum period of one month) unless the service package is terminated with two weeks’ notice before expiry of the minimum term or the respective renewal period.

      The right to terminate the service package without notice for good cause by the user or Reputami remains unaffected. In particular Reputami may terminate without notice for good cause if the user culpably abuses the services of Reputami, releases evaluation results contrary to Section 7.2 or defaults on payment obligations for more than 30 days.

      Each notice of termination may be given by using the contact form provided on the eKomi Website, by email or by letter. Notice of termination by the user shall be addressed to the contact details referred to in http://reputami.com/en/imprint. In the event of a termination by eKomi the contact details stored in the user account at the time notice of termination is given or communicated to eKomi by then via email or letter shall be decisive.

    3. Termination of the License Agreement

      Notice of termination of the License Agreement may be given at any time. In principle, the License Agreement terminates immediately in this event unless the user makes use of a service package which has not been completed. In this case the License Agreement does not terminate until completion of the respective service package. The user account is maintained as long as required for the execution of uncompleted service packages as well as claims resulting therefrom. In the event of a termination without notice for good cause by eKomi, eKomi reserves the right to block the user account irrevocably.

  5. Booking of a service package, prices and payment methods for service packages

    1. Booking of a service package; obligation to pay remuneration

      Registered users may place legally binding orders for service packages provided by eKomi via the provided booking methods. Upon legally binding order of a service package eKomi is entitled to payment of a license fee for the service package selected by the user. Fees are payable in advance for the entire contractual minimum term of each booked service package. In each case of a renewal of the term of a service package the payment claim arises again and is to be paid in advance for the entire renewal term. eKomi shall be entitled to payment of fees regardless of whether the user actually makes use of the eKomi Services.

    2. Amount of license fees, other costs

      The amount of license fees depends on the respective service package selected by the user as well as the associated term. The amount of license fees may be found in the current price list (see http://reputami.com/en/pricing). eKomi reserves the right to alter the price list, the prices contained therein as well as the associated service packages at any time. A change in prices does not lead to change in fees for the term of a service package booked prior to the price change. The same applies in the case of an automatic renewal of the service package according to Section 4.2. In connection with individual features of the eKomi Services, see Section 10.3, additional costs for the data transmission may occur.

    3. Upgrade and license fee

      If the user chooses to upgrade his or her service package the amount of the fee shall be determined according to the price of the higher-value product. The increased license fee shall be due for payment immediately in advance for the minimum term of the upgrade upon booking the upgrade. In all other respects Section 4.2 as well as the other provisions set out in this Section 5 shall apply to the upgrade.

    4. Payment methods

      The license fee is payable only in accordance with the terms of payment specified by eKomi. Payment methods other than those explicitly offered will not be accepted.

    5. Invoicing, warnings

      eKomi will issue an invoice for the use of the service package to the user for the minimum term as well as for each renewal term. eKomi will transmit invoices to the user only in electronic form via the invoice setting in the user account and by email. eKomi is entitled to forward payment reminders and warnings exclusively in electronic form to the user.

  6. General rules for the use of eKomi Services; use contrary to the terms of the agreement

    1. General duties using eKomi Services

      The user is obliged to adhere to the applicable laws with respect to the use of eKomi Services. It is the sole responsibility of each user to ensure that measures taken, in particular the approach of authors of Customer Reviews, are lawful and do not violate any rights of third parties. The user is obligated not to abuse either access to the eKomi Websites or the eKomi Services and to refrain from illegal actions.

    2. Duties when accessing other services via eKomi

      As far as eKomi offers the user the opportunity to contribute posts to other services (e.g. Facebook) via a user interface provided by eKomi the user is obliged to comply with the terms of use of the respective service. The user is obliged to indemnify eKomi from all claims, in particular claims for damages, of the operator or a user of the respective service resulting from a culpable breach of duties or violations of the terms of use of the respective service or violations of rights of third parties by the user. The user undertakes in this respect to compensate eKomi for all reasonable costs incurred (e.g. for legal defense) unless the user proves that eKomi actually incurred lower costs. The parties will inform each other immediately in writing if claims are asserted against them.

    3. Safeguarding evaluation results

      It is the user’s sole responsibility to archive on a storage medium independent of eKomi all information visible on the eKomi Websites and required for purposes of securing evidence, accounting etc. The possibility of a subsequent change of evaluation results as described in Section 2.8 is explicitly referred to here.

    4. Use of eKomi Services only within the contractual scope

      The user may use the content and services of eKomi only to the extent stipulated in this agreement, to wit only in accordance with the options provided by eKomi. The user is not permitted to intervene in the eKomi Services or access services and data in any other way than via the eKomi Websites or via such mobile applications authorized by eKomi and in accordance with the contractual specifications, in particular he or she must refrain from accessing content of eKomi with so-called robots, spiders, scrapers or other automated systems without receiving the prior explicit consent of eKomi in writing; implementing manual operations that are designed and suited to monitor or copy the eKomi Websites or eKomi Services without explicit and written consent of eKomi; employing software or programming routines or other disproportionate measures which interfere or attempt to interfere with the functionality of the eKomi Websites, mobile applications or eKomi Services.

  7. Scope of permitted use of evaluation results and other content from eKomi

    1. All rights to eKomi, the eKomi Websites and eKomi Services are the property of eKomi. Content, service features, texts, videos and data represented on the eKomi Websites are the intellectual property of eKomi and protected by copyright law or may be owned by third parties.

    2. The user is not entitled to either disseminate or communicate to the public the eKomi Websites, the mobile applications provided by eKomi, the eKomi Services, the latter’s contents and evaluations without prior explicit and written consent from eKomi. In particular dissemination and communication to the public of screenshots or other images and reproductions of content of any kind located on the eKomi Websites or mobile applications provided by eKomi is prohibited. It is expressly prohibited to sell the evaluations obtained in connection with the eKomi Services or create derivative works thereof. Unless expressly agreed otherwise no licenses are granted to the user.

      Use within the company of the user, in particular in relation to the company’s staff members is specifically exempt from the prohibition of dissemination and communication to the public. The user is however obliged to instruct his or her staff members with regard to the restrictions according to this Section 7.2.

    3. The user shall not copy, represent, publish or sell the eKomi Services provided or create derivative works thereof.

    4. The user is hereby expressly informed that violations of the regulation of Section 7 constitute a material breach of the contract.

  8. Sanctions and blocking of user account

    1. In case of breach of any obligation under these GT&C on the part of the user despite a warning or despite a reminder in case of payment obligations eKomi reserves the right to restrict access to the eKomi Services either completely or partially or to block them temporarily or permanently. eKomi may select and apply abovementioned measures at its equitable discretion; however eKomi will take into account the concerned user’s legitimate interests in particular in the event that evidence exists indicating that the user is not culpable for a violation.

    2. If a breach of contract justifying the legal consequences of Section 8.1 is determined by eKomi, then eKomi will first warn the user customer and grant him or her a grace period to eliminate or discontinue such behavior contrary to the terms of this agreement.

    3. Additional claims in particular for damages as well as the right of termination without notice for cause remain unaffected by the provision of Section 8.

    4. eKomi reserves the right to charge a handling fee for blocking the user account due to violations of the GT&C insofar as the user is culpable for such violation, unless the user can prove that expenses were not incurred at all or were incurred in a considerably lower amount. eKomi may also charge a handling fee for the reinstatement of a blocked user account. The amount of the handling fee can be found in the current schedule of fees available at http://reputami.com/en/tariff.

  9. Limitations of liability

    1. In relation to entrepreneurs eKomi is liable for damages subject to the other provisions of this Section 9 only if and to the extent eKomi, its statutory representatives, executive employees or other vicarious agents acted willfully or with gross negligence. In case of a violation of essential contractual obligations eKomi shall be liable for any culpable conduct of its statutory representatives, executive employees or other vicarious agents. “Essential contractual obligations” shall abstractly mean such obligation required to be carried out to enable the proper performance of the agreement and which the user can expect to be met.

    2. In relation to consumers eKomi is liable subject to the other provisions of this Section 9 only in cases of willful intent and gross negligence. However, in case of a violation of essential contractual obligations (as defined in Section 9.1 Sentence 3), of debtor’s default or of impossibility of performance caused by eKomi, eKomi shall be liable for any culpable conduct of its statutory representatives, executive employees, staff members and other vicarious agents.

    3. Except in cases of willful intent or gross negligence of statutory representatives, executive employees or other vicarious agents of eKomi, liability shall be limited to the amount of the damage typically foreseeable upon conclusion of the agreement.

    4. Liability for any indirect damage, in particular for loss of profits, shall only exist in case of willful intent or gross negligence on the part of eKomi, its statutory representatives, executive employees or other vicarious agents.

    5. The limitations of liability and restrictions stipulated in Sections 9.1 to 9.4 in relation to entrepreneurs or consumers shall not apply in case of the acceptance of explicit guarantees, lack of guaranteed properties and for damages arising from the injury to life, body or health as well as with respect to mandatory statutory provisions.

    6. All technical advice or consultancy services provided by eKomi, which are not included in the contractually agreed scope of services of eKomi, are provided without consideration and under exclusion of any liability.

  10. Data and data protection, sending of information via eKomi Services

    1. All personal data of the user is treated in accordance with the applicable statutory provisions regarding data protection. In addition, the provisions of Section 10 shall apply as well as the provisions of the privacy policy which can be found at http://reputami.com/en/privacy.

    2. In case the user’s account credentials are required for the use of certain Data Sources, e.g. Foursquare, and are provided by the user to eKomi, eKomi will store and use such account credentials solely for the purpose of performance of the agreement and protect it from access by third parties.

    3. Individual eKomi Services require that eKomi can actively send the user short messages via phone or internet-enabled electronic devices, e.g. via SMS, email or similar message formats (so-called push notifications). Costs may be incurred by the user for the data transmission. The user may prevent notifications through the settings in his or her user profile.

    4. eKomi informs the user about offers and news relating to eKomi Services or service packages by email. The user may object to the sending of such email at any time without incurring any additional transfer costs other than the data transmission costs according to the base rates of his or her internet service provider. To voice objection it is sufficient to give notice via email or letter to the contact details stated in http://reputami.com/en/imprint. The user may object further sending of information emails at any time using the unsubscribe link contained in such emails.

  11. Responsibility for links and damage caused by Data Sources or content of linked external websites

    1. eKomi assumes no responsibility for the legality of content on linked external websites (including Data Sources), nor for freedom from malicious content and programs of the linked external websites. In this respect eKomi shall not be liable for damage incurred by the user as a result of the execution of a link to the external website or the content of linked external websites.

    2. In case the user observes any illegal use of the eKomi Websites or any use contrary to the contract, including any dubious links, he or she shall report this to eKomi.

  12. Applicable law, place of jurisdiction and alternative dispute resolution

    1. These GT&C and the License Agreement regulated therein shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Sales Convention.

    2. Place of fulfillment shall be the seat of eKomi.

    3. In case the user is a merchant in the sense of trade law, a legal person under public law or a public special fund the seat of eKomi shall be the exclusive court of jurisdiction.

  13. Amendment of these GT&C, form of amendments and communications, severability clause

    1. eKomi reserves the right to amend these GT&C at any time and without giving reasons unless unreasonable for the user. The amended terms will be sent to the user by email no later than six weeks prior entry into force. If a user fails to object the validity of the new General Terms and Conditions within a period of six weeks after receipt of the email informing him or her about the new General Terms and Conditions the amended General Terms and Conditions are deemed accepted. eKomi will refer the user to the importance of this six-week period separately in the email containing the amended General Terms and Conditions.

    2. Unless otherwise agreed in these GT&C, the user may submit all statements to eKomi by email, via contact form accessible on the eKomi Websites or by letter. eKomi may submit statements to the user by email or letter to the addresses specified as the current contact details by the user in the user account or communicated to eKomi by email or letter.

    3. If any provision of these GT&C is ineffective the remaining provisions shall remain unaffected.