EPLAN GmbH & Co. KG (hereinafter "EPLAN") operates a Web-based portal in which users are provided with digital product data of various manufacturers, i.e., manufacturers of parts, components and digital device information from the most different types and industries (hereinafter the "Data") for various types and possibilities of uses (hereinafter the "Data Portal").
§ 1 Portal users
EPLAN differentiates the portal users into three user categories:
- Viewers: Portal users who do not use EPLAN products and have not electronically registered in the Data Portal
- Registered users: Portal users who do not use EPLAN products but have electronically registered in the Data Portal
- EPLAN users: Portal users who use one or more EPLAN product(s), who have electronically registered in the Data Portal and entered into a valid software services agreement
The respective portal users may use the Data Portal in various ways and with various options, which are specified in more detail in § 5 below.
§ 2 Scope of the database
2.1 EPLAN will provide the prospective portal users with the Data in the Data Portal for viewing.
2.2 While EPLAN endeavours to continuously expand and update the Data Portal, EPLAN or, as the case may be, the respective manufacturers, are exclusively responsible for the decision what Data, i.e., in particular, what type and what extent of Data, will be provided.
2.3 EPLAN will enter the Data in the Data Portal in accordance with the arrangements made with the manufacturers. This also applies to any subsequent updates of the Data. In so doing, EPLAN will enter the Data of all manufacturers in the Data Portal with equal worth and will, in principle, not actively favour or discriminate against a manufacturer by motives or purposes by which EPLAN is driven. As a result of activities by users such as their download behaviour and the like, a favoured display or position of specific manufacturers cannot, however, be prevented. In addition, EPLAN will provide the respective manufacturers with the possibility to carry on accompanying advertising in suitable form and within the scope of the realisable technical implementation (e.g., banner placement). Furthermore, additional functionalities to the standard functionality may facilitate higher-quality results such as in relation to the presentation and analysis.
§ 3 Completeness, accuracy and up-to-dateness of the Data
3.1 EPLAN has exercised great care in compiling the Data in the Data Portal. EPLAN is unable to check the completeness, accuracy and up-to-dateness of the Data. Therefore, it cannot be excluded that individual Data are inaccurate, incomplete or not up to date. EPLAN assumes no liability therefor, nor a liability for the usefulness of the Data for the respective portal users as such. Portal users may, however, communicate any questions regarding Data which are inaccurate, incomplete, or not up to date, as well as any difficulties and problems in connection with the Data, through a built-in "Feedback Function" directly to the manufacturer.
3.2 In that respect, the related data sheet of the manufacturer will be exclusively relevant for the product specifications; no identity of the product data in the Data Portal to the original parts is warranted. In case of doubt, portal users must address the respective manufacturer for verification purposes.
§ 4 Access to the Data Portal
The access to the Data Portal is provided online through the portal user's Internet connection. The portal user is responsible for the connection of the device used by the portal user to the Data Portal hosted by Microsoft Azure and for all technical facilities and/or equipment which are required therefore or are necessary otherwise. No specific availability of the Data Portal is agreed. In particular, EPLAN may also during the operating time of the Data Portal perform maintenance work to the Data Portal or servers. EPLAN will, however, endeavour that any such maintenance work will not result in limitations for portal users and to ensure a high availability of the Data Portal.
§ 5 Rights of use
5.1 The Data Portal is protected by copyright. EPLAN holds all rights to the Data Portal and its essential parts. The respective manufacturers alone are the owners of the original product data.
5.2 In principle, the portal users may research Data in the Data Portal for their own use. The access to the Data Portal and the related use of the Data is explicitly limited to the use of the Data for the respective portal user of the user categories specified in § 1 above. Under no circumstances may the Data be used in whole or in part for the reproduction, replacement and/or any other imitation of the Data Portal.
5.3 in accordance with the user categories specified in § 1 above, the portal users have the following access options:
- Registered users:
- EPLAN users
5.4 If the respective portal user is so entitled in accordance with his user rights, the user may use, process and store the downloaded Data within his business enterprise for his own purposes (including in systems such as ERP, PDM or PLM systems). The respective portal user may only incorporate Data in the (*.edz) format in connection with EPLAN and products acquired from EPLAN, as well as in relevant projects created or processed by the user, and also disclose them to third parties outside the user's business enterprise as part of the project documents and files.
Any other or additional use of the Data is prohibited, in particular:
- the disclosure of Data to third parties outside the business enterprise which do not form part of individual project documents and files in the aforementioned context;
- the removal of copyright notices, trademarks or other labels and reservations in the Data.
§ 6 User's duties
§ 7 Warranty; Liability
7.1 EPLAN shall ensure that the portal user is not materially adversely affected in the user's access option and/or the ability to download the Data as a result of impairments caused by EPLAN's system and that any fault or defects are rectified within a reasonable period.
7.2 EPLAN will be liable in accordance with the statutory provisions for any damage caused by EPLAN or an agent of EPLAN as a result of intent, gross negligence or the negligent violation of material contractual duties. "Material contractual duties" means contractual duties, the compliance with which makes the proper performance of the contract possible in the first place and in relation to which the other party may regularly rely on their compliance.
The liability for mandatory statutory provisions to the contrary, the liability for a violation of life, body or health, as well as in relation to claims under the German Product Liability Act and under guarantees, remains unaffected by the limitations of liability set out below.
7.3 In the event of a negligent violation of non-material contractual duties, EPLAN will be liable for the resultant material damage and pecuniary loss, the occurrence of which could typically and reasonably be expected at the conclusion of the contract. The relevant standard is the total amount of the contractually agreed remuneration for EPLAN, if such total amount can be determined, or - if the total amount cannot be determined (for example, on account of an indefinite term) - the total remuneration or average monthly remuneration paid within a period of 12 months before the damaging event.
Portal users will be free to demonstrate that EPLAN had to expect higher damage. In the remaining cases, a liability will be excluded. This applies also to any indirect or consequential damage of loss of profit.
7.4 The limitation period for any claims under section 7.1 above is one year.
§ 8 Data protection
8.1 EPLAN may collect, process and store personal data of portal users in compliance with the applicable data protection laws, directives and other regulations; the portal user shall keep his registration data up to date and enter any changes in his registration profile of the Data Portal in a timely manner.
8.2 Should EPLAN carry out any analyses of the user data and use such data for internal purposes, EPLAN will do so only to the extent permissible under data protection law and inform the portal user thereof. User-related Data will only be disclosed to the manufacturers if the portal user has granted his express prior consent. Statistical evaluations in anonymised form are only admissible for the further development of the Portal.
§ 10 Final provisions