General terms & conditions

Section 1 – Scope

1.1. The General Terms and Conditions apply to all, also future, services of Echobot Media Technologies GmbH (hereinafter referred to as “Echobot”), in relation to the provision of services, the production of software and the operation of portals and Internet services (“Echobot Services”). They regulate the contractual relationship between Echobot and the natural persons and legal entities (hereinafter referred to as “User”) who either use Echobot Services manually or by means of automated systems.

1.2. The services offered by Echobot are exclusively intended for entrepreneurs within the meaning of Section 14 BGB [German Civil Code], i.e. legal entities or partnerships with legal capacity. Only these are Users within the meaning of these terms and conditions. In this respect, Echobot rejects the conclusion of contracts with consumers. Upon conclusion of this contract, the User declares that its use can primarily be attributed to its commercial or independent professional activity.

1.3. “Customers” within the meaning of these GTC are furthermore regarded as all Users who enter into, or have entered into, a remunerated or non-remunerated contractual relationship with Echobot, the content of which is the use of the Echobot Services.

1.4. The employees of Echobot are only authorised to issue agreements, side agreements, individual guarantee commitments or assurances, which deviate from these terms and conditions, if these are recorded in written form in the order confirmation and have been confirmed by an expressly authorised person or by the power of his executive body position, full power of attorney or general power to act.

1.5. Deviating terms and conditions or purchase or terms and conditions of the User shall only be valid if Echobot has acknowledged these separately in written form. They shall be regarded as subordinated to these GTC in the event of a conflict.

Section 2 – Purpose

2.1. The business purpose of Echobot is primarily the provision of a search engine and supplementary (online) software and services for the processing and analysis of results. The aim of the search engine is to find, process and evaluate articles, news, opinions and comments, as well as company information, address and contact data (hereinafter jointly referred to as “Hits” or “Results”), as well as their modifications and updates.

2.2. As “sources”, websites, interfaces to various platforms (e.g. from social media), as well as databases and various search services of partner companies, are addressed for this purpose (cf. Clause 3.4.).

2.3. Contents are mainly processed and delivered, which are freely publicly accessible, but also those that originate from partners and may be legally protected. These are made available via the so-called Echobot “Search Index”.

2.4. Access takes place by the Users with the aim of evaluating the Search Index, by means of specific search words and queries, individually or on a regular basis by subjects, companies, persons, products, events, mentions, changes or signals and using the delivered Results for the commercial activity.

2.5. Conventional use is within the extent permitted by law and is aimed at self-information of the Users within the own company. Further use may also be the subject matter of use. It will however then be linked by Echobot to additional contractual terms and conditions (e.g. in the case of acquiring article licences for a full-text press review).

2.6. If the offered services are supplemented by additional third-party services, Echobot shall obtain any required consent from the User for additional necessary contractual terms and conditions prior to the respective activation of the supplementary services.

Section 3 – Scope of service

3.1. Echobot shall grant the User a non-exclusive, limited licence for use over the term of the cooperation for access to the Echobot software and the use of the Echobot Services in accordance with the concluded contractual agreements. The nature, number and scope of the access options will specifically be regulated. The onward sale, disclosure or leasing of the granted licenses for use is only permitted with the prior written consent of Echobot.

3.2. For this, the User will be provided with a protected working environment, which is retrievable via the Internet and can be accessed by entering a login/password combination or via an interface using authorised retrievals.

3.3. In this working environment, Echobot runs the software and search technology, which executes queries according to the specifications and configurations of the User, individually or on a regular basis, selects and filters the Results in accordance with defined criteria and displays the Hits in an appropriate form or makes them available for retrieval.

3.4. The scope of the underlying source database and the selection of the linked interfaces, platforms and databases (hereinafter jointly referred to as “Sources”) are subject to the discretion of Echobot. In order to ensure the topicality and effectiveness of the services, Echobot reserves the right to expand, modify or supplement the Sources at any time. The User can view the respective current status, propose Sources for supplementation or query their processing status. However, for technical and legal reasons, no entitlement exists by the User for specific Sources to be processed.

3.5. The frequency and scope of the retrieval and the processing of individual Sources, as well as the recording of the contents in the Echobot Search Index, is designed for the best-possible coverage and topicality and based on the best findings and business practice of the Echobot systems. No entitlement exists to customised adaptation of these procedures.

3.6. Echobot is authorised to reject concrete queries or search orders in individual cases, provided that these are not executable or reasonable for technical or legal reasons. In these cases, Echobot will inform the User in an appropriate form. The User can make its own changes to its search queries or orders using the software.

3.7. The delivered Hits and Results originate from many different, constantly changing third-party sources. Therefore, Echobot neither owes complete nor accurate content of the search results, nor accuracy of the concrete presentation. Echobot expressly does not take ownership of the contents and statements from delivered results, not even if the Hit Results fit into the overall image of the Echobot Services, for design reasons.

3.8. The User understands that the delivered results are determined automatically and, due to the mass and speed of the processing, no prior review can be performed by Echobot. The User is aware that the Results may contain incorrect, harmful, illegal, offensive or otherwise improper or inappropriate texts, images or works. The User shall not regard this fact as a defect and shall not derive any claims, e.g. due to consequential damages, against Echobot.

3.9. Echobot shall provide the contractually owed services 365/366 days a year (“Operating Period”) and guarantees 99% accessibility of its offered services during the Operating Period as an annual average. The time between 12:00 a.m. and 4:00 a.m. (Berlin) at night, during which maintenance, back-up or update procedures can be performed, as well as time for other maintenance activities, is exempted from the Operating Period, provided that these have been announced up to 24 hours beforehand and do not last for longer than 6 hours. All operational disruptions, which are not within the sphere of influence of Echobot (e.g. force majeure, third-party fault etc.), are also exempted from the Operating Period.

3.10. Technical data, specifications and performance specifications in public statements, particularly in advertising materials, are not to be understood as quality specifications of the Echobot products in the contractual sense.

Section 4 – Duties of the User

4.1. After a working environment has been set up for the User by Echobot, he or she is responsible for the non-disclosure of all data allocated to him or her for authentication such as logins, passwords, tokens or API keys (jointly referred to as “Access Data”). The User shall not disclose these to third parties and specifically also bears the responsibility for any misuse, which will only take place with its allocated Access Data.

4.2. The User furthermore undertakes to observe these GTC for the use of Echobot Services and apply the customary due diligence. This specifically means:

  • a. not taking advantage of program errors which occur, but reporting these to Echobot immediately.
  • b. not manipulating the service or its infrastructure.
  • c. not using the service for illegal or obviously unfair purposes.
  • d. not distributing any viruses, worms or other malicious code via the service.
  • e. not reading out the services and database works of Echobot using automated scripts/queries (scraping), except if this is explicitly part of the contractually agreed use and takes place using the prescribed interfaces.
  • f. not attempting to gain possession of profile and personal data of other Users or otherwise jeopardise data protection.
  • g. not maliciously misleading other Users of Echobot Services.

4.3. If evidence or a serious suspicion exists that a User has committed or attempted a breach of duty in accordance with Clause 4.1. or 4.2., Echobot may exclude the User from using its services with immediate effect until final clarification of the matter.

4.4. The Customer’s data required for transaction processing are stored electronically within the scope of the provisions of the BDSG [German Data Protection Act]. Echobot guarantees the storage in Germany and compliance with the provisions of the BDSG and the TMG [German Telemedia Act]. The User consents to the processing of its data in accordance with the currently valid data protection policy of Echobot (at www.echobot.de/index/datenschutz)

4.5. The search queries sent to Echobot may also be subscribed to via email. When using this option, the User undertakes to only store such email recipients whose explicit consent was obtained in advance.

4.6. By sending in the Access Data, the User shall be granted the opportunity to configure queries, filters and therefore the Hit Result itself. Therefore, the User has a cooperation duty to perform his or her own configuration and check it on a regular basis. If the User determines that the resulting Hit Results do not meet his or her requirements, he or she can immediately ask the Echobot employees for support. The parties concur that incorrect or defective configuration of the queries shall not form the basis of any material or performance defects.

Section 5 – Work results and rights

5.1. The delivery of the Hits and Results found by Echobot (particularly news and articles) takes place subject to all exploitation rights. The User undertakes to only duplicate, distribute or provide public accessibility to all extracts, texts, images etc. (notwithstanding the respective carrier medium) only to the extent permitted by law, in compliance with the statutory provisions (e.g. in accordance with Section 53 UrhG [German Copyright Act]) or on the basis of a separate agreement with the respective copyright holder.

5.2. The following regulations in Clauses 5.3. – 5.8. apply only to Users of the “Echobot Sales” services:

5.3. Echobot collects, processes and uses sales addresses, characteristics and contact data of companies within the scope of the Echobot Sales product. Personal data are also recorded and processed, provided that the person appears publicly within the context of his or her freelance or non-freelance commercial activity (e.g. by recording the User’s business telephone number, business email address or ascertainment of his or her role in the company on the company website). The collection of these, hereinafter referred to as “Address and Contact Data”, and their disclosure to the Users takes place in accordance with the provisions of the BDSG.

5.4. The User undertakes to only use the Contact Data defined in Clause 5.3. to the extent permitted by law (e.g. in accordance with Section 7 UWG [German Fair Trade Practices Act]) and only in accordance with the purpose designated by the Echobot Services. A different use is only permitted if the User has previously explicitly obtained the recipient’s necessary consent for this (e.g. with “double opt-in”). Echobot points out to the User that such consent is not associated with the general provision of Contact Data. In this respect, the User is responsible for the lawful admissibility of the continued use, particularly under data protection and competition law perspectives. Echobot does not owe the suitability of the delivered data for a purpose intended by the User

5.5. Echobot grants the User a basic, non-transferable right of use to the provided databases and database works. The User is not authorised to lease or sell the address and contact databases sourced from Echobot to third parties. Disclosure to affiliated companies or service providers is also only admissible if they appear as legal agents of the User and their opportunity for use is limited to the relevant project in an appropriate form, regarding time and place.

5.6. If the User provides Echobot with his or her own contact or address data (e.g. for the purpose of address updating or enrichment), he or she herewith grants Echobot a basic right of use, without limitations regarding time and place, to process, duplicate and compare these data with own data. It is clear to the User that this “data comparison” is a prerequisite for the functionality of specific services of the “Echobot Sales” product in accordance with the contract.

5.7. The User acknowledges that the Results, Contact Data and characteristics derived from this (e.g. the details about the industry key, company size etc.), so-called technologies (e.g. the statement that a company uses specific software) or so-called signals (e.g. the statement that a company has had a change of manager) are automatically determined by software and therefore no claim exists to accuracy, completeness or correctness of content.

5.8. Within the scope of its contract, a Customer of Echobot Sales may activate companies that he or she has selected in order to obtain information about them. Any such “activation” will be offset with a monthly inclusive contingency specified in the contract. If this is exhausted, the supplementary fees, which are also specified, shall be incurred for each additional activation. Therefore, the Customer shall only provide such Users with access to the system who are authorised to also perform fee-paying activations or have this function restricted by Echobot upon conclusion of the contract. Any activation by a company is valid for 12 months, but may lapse prematurely, if the contractual term of the Customer ends sooner.

5.9. In order to ensure the contractual conformity of use, the User authorises Echobot to log queries or website retrievals made on the system in an individual or aggregated form and to analyse these manually or automatically. Within the scope of this analysis, full or partial transfer and storage of log data to/in foreign countries (e.g. using Google Analytics) cannot be ruled out by Echobot.

5.10. If an infringement of third-party rights occurs as a consequence of an infringement of the regulations referred to in subsection 5.1. to 5.9., the User exempts Echobot from all third-party claims resulting from this. The reimbursable costs also include the appropriate costs of legal defence, which Echobot may incur from the defence of third-party claims. However, Echobot shall inform the User at once about legal defence measures to be performed. In such disputes with third parties, Echobot may only conclude settlements after consultation with the User. Otherwise, Echobot shall bear all costs of the dispute itself.

Section 6 – Order, prices & terms

6.1. A contractual relationship with the User is concluded by sending an order to Echobot in written or electronic form or by means of a telephone agreement with a Customer advisor. It is deemed as confirmed if the User does not object to the commercial order confirmation at once after its receipt or as soon as the initial performance action has taken place (e.g. starting use after sending the access data).

6.2. The valid fees notified to the User from the respective current price list, a concrete offer or the website apply at the time of conclusion of the contract. All prices are stated in euro, exclusive of statutory value-added tax.

6.3. The minimum term of an Echobot contract is 12 months, unless stated otherwise in the order confirmation. Unless explicitly agreed otherwise, the fees for each performance period always fall due completely in advance for the entire term. The invoicing takes place at the start of the term and is normally payable within 10 days after receipt by the User.

6.3. The minimum term of an Echobot contract is 12 months, unless stated otherwise in the order confirmation. Unless explicitly agreed otherwise, the fees for each performance period always fall due completely in advance for the entire term. The invoicing takes place at the start of the term and is normally payable within 10 days after receipt by the User.

6.5. The User undertakes to provide all details truthfully and completely upon placing an order. Echobot must be notified at once about subsequent changes to addresses or contact persons. Echobot undertakes to provide the User with the agreed service from the start of the arranged term.

6.6. All contracts extend automatically after the end of the term at the contractually agreed terms and conditions by the next respective agreed contractual term, unless a cancellation exists by three working days prior to the end of the term or otherwise agreed in writing. The receipt of the declaration by Echobot is decisive for the validity and punctuality of the cancellation.

6.7. If a contractual relationship with a Customer is extended beyond the initial term, Echobot shall subsequently be authorised to use the name and logo of the Customer as a reference. Prior to initial use as a reference, Echobot shall point out this circumstance to the Customer again separately. This consent may be revoked by the Customer at any time (also already directly after conclusion of the contract). A simple reference, e.g. via email, is sufficient.

Section 7 – Error classes

7.1. Echobot will start with the rectification of software errors within the response time (time frame during working hours [Mondays to Fridays from 9:00 a.m. until 6:00 pm., except for national holidays], from the notice of defects until their expiry, Echobot must have reported the start of the rectification activities to the User) and rectify the errors within the rectification time.

7.2. For errors that impair operations (error class 1: The error prevents the use of the contract subject matter or significant parts of the contract subject matter) and errors that impair operations (error class 2: The error impairs the use of the contract subject matter, i.e. the use of the contract subject matter is only possible with significant effort or the use of the contract subject matter poses an unreasonable risk for the proper function of the licensee’s other systems) Echobot will begin with the rectification within 10 hours in accordance with Clause 7.1. and will rectify the error within an appropriate period of time.

7.3. For other errors (= error class 3: Use is not significantly impaired), Echobot will begin with their rectification within an appropriate time limit and rectify these as soon as internal processes at Echobot (e.g. the next update of the Echobot software) enable efficient rectification.

7.4. An error may be classified in a lower category by Echobot after partial repair or after pointing out a work-around solution.

7.5. The notice of defects by the User may initially also take place by telephone/verbally. However, it shall be repeated in text form no later than on the next working day and must describe the circumstance complained about as an error in as much detail as possible and preferably reproducibly (error report).

Section 8 – Liability/compensation for damages

8.1. Echobot is only liable to the User for damages that are cause maliciously or with gross negligence. This does not apply if significant duties of the contract are infringed by Echobot. Material contractual obligations are such contractual obligations whose fulfilment make the proper execution of the contract possible at all and which the Distribution Partner can generally rely on and trust in being complied with.

8.2. In the case of slight negligence, liability by Echobot is excluded for pecuniary damages with respect to indirect damages, particularly consequential damages, unforeseeable damages or atypical damages, as well as lost profit.

8.4. The limitations/exclusions of liability in accordance with Clauses 8.1. to 8.3. also apply to personal liability of the wage earners, salaried employees, executive bodies and legal agents of Echobot.

Section 9 – Performance and invoicing by third parties

9.1. Echobot is authorised to also provide contractually owed services by third parties, particularly companies affiliated with the Company.

9.2. Furthermore, Echobot is authorised to assign its own claims from the contracts to third parties or authorised third parties to assert claims on their own behalf.

9.3. The User is only permitted to offset claims of Echobot with undisputed or legally established claims. The User may only assert a right of retention in cases of undisputed or legally established claims.

Section 10 – Right of change – change of the GTC

For a change to the General Terms and Conditions applicable to the contractual relationship by Echobot, the respective new version shall become contents of the contract two months after receipt of a corresponding declaration, at the earliest, if Echobot notifies the changes to the User in text form with reference to the option of objection, as well as with reference to a one-month time limit of the objection after receipt of the corresponding declaration, and the User fails to object to the corresponding declaration within one month after receipt of the corresponding declaration. If an objection occurs, the contract will continue unchanged. The right of the contracting parties to cancel the contract remains unaffected by this.

Section 11 – Final provisions

11.1. The law of the Federal Republic of Germany exclusively applies to the contractual relationship, to the exclusion of the UN Sales Convention.

11.2. The place of performance for all rights and duties under this contract is Karlsruhe, unless specified otherwise.

11.3. If the User is a trader, public law legal entity or responsible body for a special public law fund within the meaning of Section 38 ZPO [German Code of Civil Procedure] or the User changes his or her place of residence, usual abode or registered office to a foreign country or it is unknown after conclusion of the contract, the exclusive legal jurisdiction is Karlsruhe.

11.4. Changes, cancellations and amendments of Echobot contracts must be in text form (e.g. email or fax). This also applies to a rescission of this written form requirement. Verbal side agreements were not concluded.

11.5. The nullity or invalidity of individual provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions.