2. Acceptance of Terms
Unless otherwise agreed to in a separate signed writing, Your access and use of the Portal, Materials, or any services provided on the Portal (any Services), are subject to this TOU. Additionally, Your use of the Portal, Materials, and Services may also be subject to disclaimers, legal notices, click-through agreements, or other legal agreements (any, Additional Legal Terms), which may be posted on the Portal where applicable. This TOU and the applicable Additional Legal Terms (together Controlling Terms) form a legally binding agreement between You and eCommeleon regarding Your access and use of the Portal, Materials, and the Services. Whenever there is a conflict between the terms in this TOU and the Additional Legal Terms, the terms in the Additional Legal Terms shall control. Whenever there is a conflict between the terms in this TOU and Your software license, partnership and/or maintenance agreement, the terms of this TOU shall control Your access and use of the Portal, Materials and Services.
By accessing or using the Portal, You accept and agree to abide by the terms of this TOU. If You do not agree to the terms of this TOU, You must not attempt to access or use the Portal.
3. Changes and Notices
4. Confidential Information
You agree not to reproduce any Confidential Information (defined below) to which you are provided access through the Portal in any form except as authorized at the time of disclosure. Any reproduction of Confidential Information shall remain the property of eCommeleon and/or its original owner, and shall contain any and all confidential or proprietary notices or legends which appear on the original. You agree to (a) take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) to use Confidential Information solely as authorized at the time of disclosure and (c) not to disclose any Confidential Information to any party without the prior written consent of eCommeleon. You do not acquire any rights in Confidential Information except the limited rights as described above. In no event shall You use Confidential Information to create, enhance, modify, rent, lease, loan, sell, distribute or create derivative works based on Materials or Services, or compete with Materials or Services in whole or in part. As used herein, Confidential Information shall mean all trade secrets and other information, Materials or Services which eCommeleon or third parties protect against unrestricted disclosure to others which is either labelled Confidential, accessed through Portal, pursuant to software downloads, or reasonably identifiable as confidential based on the type of information and the manner of its disclosure. Reasonable steps means those steps You and/or Your company take to protect Your own similar Confidential Information, which shall not be less than a reasonable standard of care. You shall not be obligated to treat information as Confidential Information if such information (i) was rightfully in Your possession prior to receipt from or disclosure by eCommeleon; or (ii) is or becomes public knowledge other than through Your fault; or (iii) is or was rightfully disclosed to You by a source other than eCommeleon or any party under their respective control; or (iv) is independently developed by You without use of the Confidential Information disclosed hereunder; or (v) must be disclosed by You according to mandatory applicable law. You are not permitted to access eCommeleon or third party Confidential Information which You are not explicitly licensed to use as set forth in Your software license, partnership and/or maintenance agreement.
5. Your User Information, Privacy, and Data Protection
Your user ID and password (User Information) is provided to You for Your sole access to Portal. You have to keep Your User Information secure. You are solely responsible with regard to usage and security of Your User Information and any activities that occur under Your account.
You understand and agree that eCommeleon collects, uses, stores and otherwise processes Your personal information and utilization data and may share such data with third party service providers for the purposes of improving or providing the Services. Collection and processing of personal information will be treated in compliance with all applicable data and privacy protection laws, including but not limited to the General Data Protection Regulation (EU) 2016/679 (GDPR) and the German Data Protection Act (BDSG). You agree that eCommeleon may access, preserve and disclose Your User Information and other personal data if required to do so by law or to: (i) comply with a legal process; (ii) respond to claims that Your usage of Portal violates the rights of third parties or (iii) protect the rights, property or personal safety of eCommeleon, other users, and the public.
6. Copyright Policy
Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holder’s rights. You agree that You will not use the Portal to infringe the Intellectual Property Rights of eCommeleon or others in any way. You must not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notice of ownership from any originals or copies of third party software, or any Materials accessed on the Portal. As used herein, Intellectual Property Rights means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade secrets or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
7. Responsibility for Links
The Portal may contain links to external Web sites and information provided on such external websites by eCommeleon partners and third-party service providers. eCommeleon shall not be responsible for the contents of any linked website, or any changes or updates to such sites. You further agree that eCommeleon shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on any content, goods or services available on or through any such linked website.
8. Intellectual Property Rights
Your access to and use of any eCommeleon software provided on the Portal is subject to Your separate software license, partnership and/or maintenance agreement for such eCommeleon software which is supplemented by this TOU. All Intellectual Proprietary Rights to any eCommeleon software, Materials and Services shall belong to eCommeleon. Nothing in this TOU shall be deemed to give You the right to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any eCommeleon software, Materials, or Services for any reason unless otherwise permitted by law. You hereby agree to assign and do assign to eCommeleon any modifications or derivative works of any eCommeleon software, Materials or Service made by You in contravention of this limitation.
9. Permissible Use of Portal and Portal MATERIALS
Usage of Materials and Services provided on the Portal is permitted only for Your sole business purpose in the scope of this TOU and Your valid software license, partnership agreement and/or maintenance agreement for eCommeleon software. eCommeleon software, Materials and/or Services made available on the Portal may not be accessed, used or distributed by or to any third party unless stated otherwise in Your valid software license, partnership and/or maintenance agreement. This restriction notwithstanding, Materials and Services may be accessed and used by third parties as long as such third party is acting on Your behalf or as Your subcontractor and in the scope of Your valid software license, partnership and/or maintenance agreement and solely for Your sole business purposes. You are responsible to ensure that any service of such third party is in compliance with this TOU and the requirements of such software license, partnership and/or maintenance agreement.
You are permitted to use the Portal only in strict compliance with the terms of this TOU and Your valid separate software license, partnership and/or maintenance agreement, as long as eCommeleon Materials and Services are not being gathered for a use in any manner which is or could be detrimental to eCommeleon (unless such use is otherwise protected by law).
Use of the Portal for any other purpose is prohibited without the express permission of eCommeleon.
Purchases can be made by companies who have opened an account and use a permitted payment method. We reserve the right to refuse service, terminate accounts, remove or edit account information, or cancel orders in our sole discretion. The fee will be charged in advance on a monthly basis. All payments shall be made at the latest within seven (7) calendar days after the date of each invoice. Invoices will be available in the account for download or sent via electronic mail. eCommeleon is not responsible for any loss of business or data should the account be suspended or deleted for non-payment of account information, or cancel orders in our sole discretion. The fee will be charged in advance on a monthly basis. All payments shall be made at the latest within seven (7) calendar days after the invoices.
11. Termination and Accountability
In the event You are in material breach of the Controlling Terms, eCommeleon may, at its sole discretion, suspend or terminate Your account and refuse You any current or future use of the Portal. eCommeleon may remove any Materials posted on the Portal at eCommeleons sole discretion in compliance with its respective software license and maintenance agreements. eCommeleon shall not be liable to You or any third party for any termination or change to the Portal and/or the Materials and Services unless provided otherwise in its respective software license and maintenance agreements.
You agree not to use the Portal to:
publish, upload, post, email, transmit or otherwise make available any content that (a) You do not have the right to make available (b) is unlawful, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable; (c) infringes any Intellectual Property Rights of any party, (d) includes any unsolicited or unauthorized advertising, promotional materials, surveys, junk mail, spamming, chain letters, or any other form of solicitation, commercial or otherwise, or (e) contains a software virus, Trojan horse, worm, time bomb, cancelbot, corrupted file, or any other computer file or software designed to interrupt, destroy, damage or limit the functionality of any computer hardware, software or other property;
defame, harass, abuse, stalk, threaten or violate the legal rights of others such as rights of privacy and publicity;
impersonate any person or entity, including, but not limited to, an eCommeleon official, eCommeleon employee, or any other third party, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
forge email headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
interfere with or disrupt the Services, servers, or networks which support the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
violate any applicable local, state, national or international law and any regulations;
harvest, collect, or store personal information or data of other users.
You agree to indemnify and hold eCommeleon, its affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of Your content or Your usage of the Portal, Materials or Services, Your breach of this TOU or eCommeleons Copyright or Privacy Statements, or Your alleged violation of any other rights of a third party.
13. Exclusion of Software Warranties
Unless provided otherwise in Your software license, partnership and/or maintenance agreement, eCommeleon does not guarantee or warrant any features or qualities of the Portal, Materials, or Services or give any undertaking with regard to any other quality. To the fullest extent allowable by law eCommeleon hereby disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Statements and explanations to the Portal, Materials or Services in promotional material or on the Portal and in the documentation are made for explanatory purposes only; they are not meant to constitute any guarantee or warranty of certain features. No warranty or undertaking shall be implied by You from any published eCommeleon description of or advertisement except to the extent eCommeleon has expressly confirmed such warranty or undertaking in writing. Warranties are validly given only with the express written confirmation of eCommeleons management.
eCommeleon does not represent or endorse the accuracy or reliability of any (i) links to web-pages of third parties contained on the Portal, or the content obtainable on such web-pages or (ii) information provided by third parties on the Portal. eCommeleon only reviews whether the content of such web-page at the time it was linked, and information provided by third parties on the Portal evidently contains illegal contents or infringements against intellectual property rights. eCommeleon will not permanently control and/or review the linked web-pages and the information provided by third parties but upon sufficiently proven indication will remove the respective link and/or information. eCommeleon shall not be liable for damages caused by the use of the content and/or information, unless such damages have been caused by eCommeleons wilful misconduct, gross negligence or eCommeleons failure to fulfil its duty to review as stipulated herein.
14. Limitation of Liability
Unless provided otherwise in Your software license, partnership and/or maintenance agreement, TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, ECOMMELEON AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS ARE NOT LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ECOMMELEON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE PORTAL, MATERIALS OR SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES ARISING OUT OF YOUR USE OR INABILITY TO USE ANY MATERIALS, OR SERVICES PURCHASED OR OBTAINED DURING TRANSACTIONS CONDUCTED ON THE PORTAL; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS, MESSAGES, OR CONDUCT OF ANY THIRD PARTY ON THE PORTAL; OR (v) ANY OTHER MATTER RELATING TO THE PORTAL, MATERIALS OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THESE LIMITATIONS SHALL NOT APPLY IN CASE OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY ECOMMELEON AND IN CASE OF ECOMMELEONS STATUTORY LIABILITY FOR PERSONAL INJURY AND DEFECTIVE PRODUCTS.
15. Applicable Law
This site is created and controlled by eCommeleon in Germany. Therefore, the laws of Germany will govern this TOU without giving effect to any principles of conflicts of laws. You also agree to comply with all laws from the country in which You reside that are applicable to the transmission of data on the internet, including, but, not limited to laws governing the use of encryption and laws governing the transmission of data across international boundaries, into prohibited countries, and containing personally identifiable information.
Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this agreement shall be Leipzig, Germany.
Your confidentiality obligations hereunder shall survive termination of Your account. Upon any termination of Your account, or eCommeleons written request, You must cease use of Confidential Information, discoveries, and/or Services and return or destroy all Confidential Information in Your possession or control.
17. Waiver and Severability
The failure of eCommeleon to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision. To the extent that any provision in this TOU shall be found to be unenforceable, such provision shall be modified in such a manner so as to make this TOU as modified, legal and enforceable under applicable laws and the balance of the provisions of this TOU shall not be affected thereby.