Standard Terms and Conditions of Promotor XD GmbH

Standard Terms and Conditions of
Promotor XD GmbH

(As of 17 February 2021)

  1. Scope

The present Standard Terms and Conditions (ST&C) of Promotor XD GmbH, Habichtswaldweg 1-3, 64546 Mörfelden-Walldorf Local Court (Amtsgericht Darmstadt) HRB no. 101190, value added tax identification number DE 302011391, shall apply to services rendered for and communications with consumers and enterprises.

These ST&C shall apply to all contracts between PROMOTOR and the Client on services/deliverables to be rendered by PROMOTOR. These ST&C shall apply exclusively, unless they are changed by written agreements between PROMOTOR and the Client. Any deviating or conflicting conditions of the Client shall not be recognised by PROMOTOR unless PROMOTOR has expressly agreed to them.

These ST&C shall also apply to all future business transactions between PROMOTOR and the Client.

The Client shall be notified of any changes to these ST&C in writing, by fax or by e-mail. If the Client does not object to such change within four weeks of receipt of the notification, the changes shall be deemed accepted by the Client. The Client shall be informed separately of the right to object and the legal consequences of remaining silent in the event of an amendment to the ST&C.

  1. Definitions

Consumer shall mean any natural person who concludes a legal transaction for a purpose that cannot be attributed to either their commercial or their self-employed professional activity.

Entrepreneur shall mean any natural or legal person or partnership with legal capacity which, when concluding a contract with PROMOTOR, acts in the exercise of their commercial or freelance professional activity.

Companies, business premises, branches or branch offices within the meaning of the contract shall be understood to mean continuous, delimitable business premises not separated by public roads or paths, including their plant facilities.

Client shall mean any consumer or entrepreneur who makes use of the deliverables or services of PROMOTOR against payment or free of charge.

To the extent the use of Promotor’s deliverables and services is only permitted to a fixed number of concurrent users, only the maximum number of users may use Promotor’s deliverables and services at the same time.

To the extent the use of Promotor’s deliverables and services is only permitted to named users, only such registered named users may use Promotor’s deliverables and services.

  1. Registration with the PROMOTOR Online Services

Access to Promotor’s online systems may be subject to registration. Registration in the PROMOTOR online systems shall be free of charge. There shall be no entitlement to admission to Promotor’s online systems. Only persons with unrestricted legal capacity shall be entitled to participate. The Client shall send a copy of its identity card to PROMOTOR upon request.

If the Client is an entrepreneur, PROMOTOR may request that the value added tax identification number be communicated and that the entry in a public register be documented.

The data necessary for the registration shall be indicated completely and correctly. If necessary, PROMOTOR will assign the Client a Client number, a personal user name and a password. The Client may then change the password itself. The user name and password must not infringe the rights of third parties, other name and trademark rights or be contrary to accepted principles of morality. The Client shall be obliged to keep the password and its access data confidential and shall under no circumstances disclose them to third parties.

Registration alone shall not create any obligation on the part of the Client to purchase goods or avail itself of services or uses.

In the event the Client’s personal details change, the Client itself shall be responsible for updating them.

  1. Conclusion of a Contract

Any offers by PROMOTOR shall be subject to change. A contract between PROMOTOR and the Client shall be concluded by a written (also by facsimile) or electronic order placed by the Client using the order form provided for the corresponding product or service or by an order in oral form made by the Client by telephone and acceptance of this offer by PROMOTOR by sending an order confirmation, whereby sending the order confirmation by facsimile or e-mail shall be sufficient. The unconditional activation of services or the unconditional delivery of products or goods by PROMOTOR shall be equivalent to the sending of an order confirmation.

  1. Terms of Delivery

Deliveries shall be made in accordance with the agreements made with the Client. Any shipping costs incurred shall be listed in the product description and shall be indicated separately by PROMOTOR in the invoice.

Delivery dates and terms of delivery shall only be binding if they have been expressly confirmed by PROMOTOR in writing, by facsimile or in electronic form. Delivery dates and terms of delivery shall be subject to correct and timely delivery to PROMOTOR, in particular by the data suppliers of PROMOTOR. In the event PROMOTOR is, for reasons unforeseen, not able, no longer able or not able to provide deliveries and services on time after the conclusion of the contract, despite having concluded a corresponding supply agreement with a supplier before conclusion of the contract, PROMOTOR shall be entitled to withdraw from the delivery obligation. In this event PROMOTOR shall be obliged to notify the Client immediately thereof and to reimburse any consideration rendered by the Client without delay. To the extent PROMOTOR is, for reasons unforeseen, not able, no longer able or not able to provide deliveries and services on time for a certain time period after the conclusion of the contract in the case of continuous obligations, any consideration paid/payments made by the Client shall only be reimbursed by PROMOTOR on a pro rata basis.

To the extent PROMOTOR does not perform a delivery or does not perform it in accordance with the contract, the Client shall be obliged to set PROMOTOR a reasonable period of grace to provide the service. Otherwise the Client shall not be entitled to withdraw from the contract.

PROMOTOR shall be entitled to make partial deliveries to the extent this is reasonable for the Client and this is necessary for expeditious performance of the contract.

  1. Terms and Conditions for Services

Type and scope of Promotor’s services ensue from the specific agreements reached between the parties regarding the characteristics, features and performance characteristics of the services and products, as can be inferred in particular from the order form completed by the Client. The information in these or other documents or records provided by PROMOTOR shall not include any guarantee for a particular quality of the services provided by PROMOTOR. In particular, technical data, specifications and performance specifications in public statements or advertising material shall not be quality specifications. To the extent the subject of the contract is software, it shall be suitable for the use as agreed in the contract and shall otherwise have a quality that is customary for software of the same type. In all other respects, the nature and scope of the contractual services shall be determined by the specification of services, any additional conditions agreed upon and the present ST&C.

PROMOTOR shall make every reasonable effort to ensure that data, databases and software are as up-to-date and complete as possible. The complete coverage of all vehicle types shall not be owed.

To the extent PROMOTOR provides services free of charge, these may be discontinued at any time with or without prior notice. This shall not result in a claim for a reduction, reimbursement or damages.

If services are provided/used outside the Federal Republic of Germany, the applicability of foreign laws, ordinances or other country-specific features or transmission conditions may result in the contract not being able to be performed as intended or adjustments to the individual contract becoming necessary.

For the use of online services and applications of PROMOTOR and for the use of software/IT systems provided by PROMOTOR in accordance with the contract, the Client shall procure and maintain the hardware and operating system software required for this purpose as well as – if necessary – suitable communication or Internet access at its own expense. Even if the Client does not comply with this obligation, the mutual performance obligations arising from the contractual relationship shall remain unaffected.

All servers of PROMOTOR are connected to the Internet via a complex system architecture. Data traffic is routed through routers, switches, load balancers, etc., which each allow a certain maximum data throughput rate. For technical reasons, the available bandwidths for data transmission servers are limited for online use. It may happen that, due to an increased volume of data traffic, the maximum possible data throughput rate will not be available. In such cases, the data throughput rate shall be technically distributed among the connected servers or users. The availability of a certain bandwidth shall not be guaranteed.

To the extent PROMOTOR has not concluded a separate Service Level Agreement (SLA) with the Client, the following shall apply: The availability of the PROMOTOR servers and network infrastructure up to the point of handover to the Internet shall be at least 99% on a monthly average. Restrictions or impairments of the services provided by PROMOTOR may arise that are beyond the control of PROMOTOR. This shall include, without limitation, any actions of third parties, technical conditions of the Internet that cannot be influenced by PROMOTOR and force majeure. The properties of the hardware and software used by the Client also have an influence on the availability and usable bandwidth of data transmission. PROMOTOR shall regularly carry out maintenance work on its systems for the security of network operations, the safeguarding of network integrity, the functionality of services and data protection. For this purpose, PROMOTOR may temporarily suspend or restrict its services, taking into account the Client’s interests. PROMOTOR shall, to the extent possible, carry out the maintenance work at times when there is not much traffic. In the event longer temporary suspensions or limitations of services are necessary, PROMOTOR shall inform the Client of the type, extent and duration of the impairment in advance, to the extent this is possible under the circumstances and reasonable with regard to the elimination of interferences that have already occurred.

PROMOTOR may change its services if this is reasonable for the Client, taking into account the interests of the Client and PROMOTOR.

PROMOTOR may involve third parties in the performance of its deliveries and services.

  1. Copyrights and Industrial Property Rights/Confidentiality

PROMOTOR systems and PROMOTOR software, including data, databases, graphics, typology booklets, drawings and forms, are protected by industrial property rights, in particular rights of use and trademark rights, to the benefit of PROMOTOR.

For the term of the contract, the Client shall receive the non-transferable, non-exclusive right to use the PROMOTOR systems according to the intended purpose. No further use shall be permitted. The Client may not sell, give away or lend, rent or otherwise transfer to third parties the rights granted to the Client by PROMOTOR in accordance with the contract.

To the extent the Client is contractually granted the right to use software in a network, this shall not include the right to make the software available for use to other companies or third parties. If the contract refers to a study project the Client is contractually granted the right to share the study with leasing companies/captives and non-captive banks if there is reasonable interest to do so (for example ALD, Arval, Leaseplan and Alphabet).

Any authorisation to use software in a network shall not include the right to use the software in any other of the Client’s business establishments, plants, branches or offices.

A separate licence agreement shall be concluded for each business establishment, plant, branch or office of the Client, unless explicitly agreed otherwise.

The Client shall not be entitled to remove or circumvent the existing protective mechanisms of the software against unauthorised use. The Client may not duplicate retrieval keys. The Client may not remove or alter any proprietary notes, other notices of copyright, serial numbers or other features serving to identify the software.

The Client shall take the necessary and customary security measures against any unintentional and improper use of its PROMOTOR access by third parties. In particular, the Client shall keep licence numbers secret and shall not disclose them to third parties.

The Client may not sell, transfer, rent, sublicense, modify, adapt, translate, reverse engineer, decompile or disassemble into its components any part of the applications and data. The Client may not create derivative products, attempt to identify the source code of the object code or use content or software for purposes other than the use of the respective application or other purposes authorised by PROMOTOR.

Applications and data may not be copied in whole or in part or used for public purposes unless expressly authorised by PROMOTOR in writing. These obligations shall also apply to the period after the termination of the contract.

If the Client is provided with software for a limited period of time, the Client shall no longer be authorised to use the systems and data of PROMOTOR after expiry of the contract. The Client shall be obliged to delete the PROMOTOR software immediately and independently and, upon Promotor’s request, enable the timely deinstallation or the verification thereof by a person authorised by PROMOTOR. The work results produced by the Client in accordance with the contract up to the termination of the contract shall be excluded thereof. The Client shall be responsible for the storage of its work results for further use at a later date.

The Client shall impose these obligations on its employees and vicarious agents in the same manner.

  1. Anonymised Transmission of Calculation Results and Other Technical Work Results by Clients Who Are Entrepreneurs to PROMOTOR

If the Client is an entrepreneur, it shall grant PROMOTOR the non-exclusive, transferable right, unlimited in time and space, to use the purely technical components of the work results produced by the Client in anonymised form, i.e. without personal data, for its own business purposes, in particular to evaluate, duplicate, distribute or publicly reproduce them, to the extent this is done for the purposes of quality assurance and quality management at PROMOTOR or at clients and cooperation partners of PROMOTOR and/or for statistical evaluations.

The Client undertakes, if it is an entrepreneur, to transmit to PROMOTOR electronically and in anonymised form the calculation results and other technology-related work results produced with the retrieval keys used up to the time of the order, when ordering new retrieval keys via the function provided for this purpose in the PROMOTOR systems. In this context, PROMOTOR shall guarantee the exclusively anonymised transfer of the calculation results and other technology-related work results free of any personal data from the Client to PROMOTOR. The rights granted to PROMOTOR in this context shall explicitly continue to exist after termination of this contract with these Clients.

  1. Audit

In case of copy right infringement or misuse of PROMOTOR data outside the contractual rights, PROMOTOR is obliged to stop data transmission or to cut existing data connections.

  1. Terms of Payment

The prices shall be contractual based. All prices are in euro and shall not include the applicable value added tax, unless stated otherwise.

Usage independent charges shall be invoiced annually in advance for the term of the contract, unless a shorter billing period has been agreed. If the contract commences during the year, the annual fee shall be calculated on a pro-rata basis.

Usage dependent charges shall be invoiced after the end of the respective billing period, unless otherwise agreed.

All invoices by PROMOTOR shall be due for payment immediately unless otherwise agreed.

Unless otherwise agreed, payments by the Client shall be made by direct debit or SEPA Direct Debit. In the latter event, the Client shall authorise PROMOTOR to collect all payments due under the respective contractual relationship from its account using the SEPA Direct Debit Mandate. The Client shall ensure that the account has sufficient funds when the payment is due. Simultaneously, the Client shall instruct its bank to enable the direct debits drawn by PROMOTOR from its account. The pre-notification period shall be shortened to seven days.

PROMOTOR may change the prices at its reasonable discretion (s. 315 III German Civil Code (BGB)) at the beginning of the next billing period with a notice period of six weeks. If the Client does not object to this notice of such change within a period of six weeks after receipt thereof, the change shall be deemed approved. The Client shall be informed separately of the right to object and the legal consequences of remaining silent in the event of a change in prices.

The Client may only offset any claims vis-à-vis the Client with undisputed or legally established counterclaims.

In the event the Client defaults on payment of a considerable part of the remuneration or in an amount corresponding to a monthly fee for a period of more than two months, PROMOTOR may terminate the contractual relationship for good cause without notice.

One important reason for termination without notice for PROMOTOR shall be in particular if insolvency proceedings are applied for or instituted against the Client’s assets or if the commencement of such proceedings is rejected for lack of assets.

In the event of default in payment, PROMOTOR may request damages in the amount of the bank chargeback costs incurred by PROMOTOR for each unauthorised reversal debit.

  1. Reservation of Title

With respect to deliveries of goods, the goods shall remain the property of PROMOTOR until payment has been made in full. In the event the Client is more than 10 days in arrears with payment, PROMOTOR shall have the right to withdraw from the contract and request the return of the goods.

  1. Updates

If software, data or databases which PROMOTOR updates as agreed are the subject of the contract, the Client shall be obliged to carry out the delivered updates regularly and immediately in order to ensure the operability of the software and/or IT systems which are the subject of the contract.

  1. Right of Withdrawal for Consumers

Consumers shall have a right of withdrawal in accordance with the provisions of distance contract law. Consumers shall therefore have the right to withdraw their contractual declaration in accordance with the cancellation policy.

  1. Rights of Retention

In the event the Client is in default with its payment, PROMOTOR may suspend delivery during the default period or block its online services for the Client.

The Client may only set off its own claims if they are undisputed or have been established as final and absolute. The Client shall not have any right of retention vis-à-vis PROMOTOR.

  1. Claims Based on Defects

To the extent any delivered goods are defective, the Client shall be entitled to request subsequent performance in the form of removal of the defect or delivery of an item free of defects. PROMOTOR shall have the right to choose the type of subsequent performance. In the event the subsequent performance fails, the Client shall be entitled to reduce the purchase price or to withdraw from the contract.

Incorrect data shall be corrected without delay, to the extent possible, upon an objectively reasonable error description by the Client in writing. Any warranty for correctness and completeness of the data shall be excluded. The warranty that the application or the data contained therein meet the requirements or expectations of the user shall also be excluded. The right to withdraw from the contract due to incorrect data shall be limited to the existence of material defects. It shall be the Client’s responsibility to evaluate the accuracy, completeness or usefulness of any data, information or other content provided.

If the subject of the contract is the temporary licensing of software, strict liability for damages for defects that were already present at the time the contract was concluded shall be excluded.

The limitation period for warranty claims for the delivered goods shall be two years from receipt of the goods – except in the case of claims for damages. However, if the Client is an entrepreneur acting within the framework of its commercial or self-employed professional activity, the limitation period for warranty claims for the delivered goods shall be 12 months from receipt of the goods – except in the case of claims for damages.

To the extent the Client is an entrepreneur, it shall be a proviso for any warranty rights that the Client properly fulfils all inspection and notification obligations owed in accordance with s. 377 HGB (German Commercial Code).

The assignment of claims based on defects shall be excluded.

  1. Limitation of Liability

PROMOTOR shall be liable for wrongful intent and gross negligence. Furthermore, PROMOTOR shall be liable for the negligent breach of duties the fulfilment of which is essential for the proper performance of the contract, the breach of which endangers the achievement of the contractual purpose and the compliance with which the Client regularly relies on. In the latter case, however, PROMOTOR shall only be liable for the foreseeable damage customary for this type of contract. PROMOTOR shall not be liable for the slightly negligent breach of duties other than those specified in the preceding sentences.

The above limitations of liability shall not apply to a breach of duties causing injury to life, body or health. Liability under the German Product Liability Act (ProdhaftG) and the Federal Data Protection Act (BDSG) shall remain unaffected.

The Client shall be responsible for a regular backup of its data. The Client shall thereby ensure that lost data can be restored with reasonable effort. In the event of data loss caused by Promotor’s negligence, PROMOTOR shall only be liable for the costs of duplicating the data from the backup copies to be made by the Client and for the retrieval of data that would have been lost even if a proper data backup had been performed. In the case of online data transmission PROMOTOR shall not be liable for faulty or impossible transmissions caused by the transmission network of third parties.

The above provisions shall also apply to the benefit of Promotor’s legal representatives and vicarious agents if claims are asserted directly against them.

  1. Contract Term / Termination

Unless otherwise agreed, a contract shall be concluded for an indefinite period, but at least until the end of the calendar year following the date of the order. It may be terminated with three months‘ notice to the end of the minimum term or the subsequent calendar year.

The right to give special notice of termination of this contract for good cause shall remain unaffected. Important reasons that entitle PROMOTOR to the right of termination without notice shall in particular be the following:

– the Client’s default in payment which reaches the amount of the proportionate fee to be paid for the period of two months;

– the Client’s insolvency;

– a change in the Client’s industry affiliation,

– the Client’s withdrawal from a dealer or expert organisation;

– a competitor of PROMOTOR holds a share of more than 10 per cent in the Client’s undertaking or a Client holds a share of more than 10 per cent in a competitor of DAT;

– any infringement of the duty of confidentiality or of copyrights and industrial property rights by the Client.

 

Any notice of termination shall be in writing in order to be effective.

  1. Contractual Penalty for Breaches of Contractual Duties of Confidentiality, Copyrights and Industrial Property Rights

On the basis of contractual agreements, PROMOTOR receives data on the use and transfer of use in the PROMOTOR systems and PROMOTOR applications from market participants, in particular from vehicle manufacturers and importers, who have priority copyrights and industrial property rights to these data relative to PROMOTOR. To the extent the Client violates the terms of use agreed between the Client and PROMOTOR, in particular duties of confidentiality, copyrights and industrial property rights, this may lead to claims by the data suppliers against PROMOTOR for payment of a contractual penalty. In the event of a claim against PROMOTOR by data suppliers for payment of a contractual penalty for which the Client is responsible, the Client shall also be liable to PROMOTOR for the amount of this contractual penalty.

  1. Written Form Requirement

Any amendments and/or changes shall require the written confirmation by the management of PROMOTOR, unless otherwise agreed. The written form requirement shall also apply to any exclusion of the written form or any waiver of the written form requirement.

  1. Language of the Contract/Choice of Law

The language of the contract shall be German. These ST&C shall be subject to German law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable, even if the Client’s business seat is abroad. Mandatory provisions of the state in which the Client has its habitual residence remain unaffected.

  1. Place of Performance/ Place of Jurisdiction

The place of performance for deliverables and services shall be the business seat of PROMOTOR.

If the Client is a businessman, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with a contract between PROMOTOR and the Client shall be the business seat of PROMOTOR. PROMOTOR shall however also be entitled to initiate proceedings at the general place of jurisdiction of the Client.

If the Client is a consumer, the exclusive place of jurisdiction for all disputes arising from or in connection with a contract between PROMOTOR and the Client shall only be the business seat of PROMOTOR, if the Client is not domiciled or does not have its habitual residence in a member state of the European Union.

  1. Severability

Should individual provisions of a contract between PROMOTOR and the Client be invalid or in contradiction to the statutory provisions, the remainder of the contract shall remain unaffected thereby.

Any invalid provisions shall be replaced by a valid provision that comes as close as possible to the meaning and economic purpose of the invalid provision.

The above provision shall apply accordingly in the event of a gap.