1.1 These Terms and Conditions ("Terms") shall form an integral part of the contract concerning macs Data Service concluded between Hella Gutmann Solutions GmbH ("HGS") and the Customer ("Contract"). HGS and the Customer are hereinafter also referred to as the "Parties" and individually as "Party"
1.2 These Terms shall apply also to all subsequent business transactions with the Customer without any need of express reference thereto or agreement thereon upon the conclusion of a transaction relating to macs Data Service.
1.3 The use of macs Data Service shall be governed exclusively by these Terms. Any conflicting, additional or deviating general terms of business of the Customer shall not apply, even where HGS has not specifically objected to the application of such general terms of business. This shall also apply where reference is made to correspondence containing or referencing such general terms of business.
Service
2.1 HGS operates an electronic platform with certain automotive data which can be used to support the provision of connected cars services and other vehicle related services ("Platform").
2.2 Pursuant to the provisions of these Terms HGS grants the Customer access to the Platform (through an API) and a limited right to use the automotive data made available on the Platform, and provide certain ancillary services to the Customer (together "Service"). As part of the Service HGS offers cloud and API based services related to car and car diagnostic data. Details of the functionality of the Platform and the Service are set out on the Platform website at https://macsds.com (the "Website").
2.3 HGS shall be entitled to reasonably change the Service also after the conclusion of the Contract, provided that such changes do not affect the key Service functionalities. Data samples and documents provided by HGS prior to the conclusion of the Contract are only indicative unless they are expressly agreed to be legally binding.
Conclusion of Contract
3.1 The Website contains no binding contract offers. The online registration form submitted by the Customer shall constitute his binding offer to conclude the Contract for the purchase of the Service pursuant to these Terms. HGS will review the registration form and if it meets HGS' requirements will accept the Customer's contract offer and issuing a corresponding confirmation. Such acceptance by HGS may also be declared by setting up a service account for the Customer. With the acceptance of Customer's offer by HGS, the Contract is concluded incorporating these Terms.
3.2 Following the conclusion of the Contract HGS will set up a Service account for the Customer if not already done and will provide the Customer with access details to manage the account. In addition, HGS will provide the Customer with a separate set of access details required for the use of the API.
3.3 Once the Contract has been concluded and the Customer has received its credential and access details, he may purchase individual automotive data on the Platform according to clause 11.
Obligations of the Parties
4.1 The Customer shall be responsible for ensuring that all technical and organisational requirements necessary for the use of the Platform and the Service are complied with within its area of responsibility. This includes in particular meeting the applicable API specification provided by HGS and complying as a minimum with the security standards defined by HGS in the API specification or on the Website.
4.2 All access details must be stored securely and protected from loss and unauthorized access. The Customer is prohibited from sharing the access details with third parties or permitting third parties to directly access or use the Platform or the Service. The Customer is responsible for any use of the Platform or the Service using the Customer's access details.
4.3 The Customer shall be responsible for evaluating the suitability of the Service for its intended use. Furthermore, the Customer shall be responsible for compliance with all laws and regulations applicable to its use of the Service and any relevant rights of third parties. Any illegal or malicious use or misuse of the Platform and Service and any other use or interference which could impact the uninterrupted running and operation of the Platform and Service are prohibited.
4.4 The Customer shall comply with the current industry standards relating to security measures in its area of responsibility, in particular to prevent unauthorized access by third parties to the Service or the Platform.
4.5 Where a Party collects, processes or transfers personal data, this must occur strictly in accordance with applicable data protection law, in particular the requirements of the General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016, GDPR). Further details regarding data processing by HGS are contained in the Data Privacy Policy https://macsds.com/en/data-privacy on the Website.
4.6 HGS is entitled to temporarily limit or prevent use of the Platform and the Service by the Customer either in whole or in part to the extent that this is necessary to maintain the security of the Platform, the Service or the stored data, or to comply with applicable law and where a less severe but similarly effective course of action is not available. In this situation, HGS shall take the interests of the Customer appropriately into account and notify the Customer about the measures taken, where possible in advance. This shall also apply where HGS knows or reasonably suspects that the Customer's use of the Platform or the Service violates these Terms, in particular by permitting third parties to use the Platform or the Service or by exporting or sharing any HGS Data (as defined below). Further rights of HGS shall remain unaffected.
Licence
5.1 Subject to the payment of the charges set out in clause 11, HGS grants the Customer a non-transferable, non-exclusive right to use the automotive data made available by HGS to the Customer through the Platform ("HGS Data"), limited in time to the duration of the Contract.
5.2 The Customer shall be entitled to use the HSG Data for its own vehicle management purposes and/or to incorporate the HSG Data into the services or applications the Customer offers to its clients (e.g. fleet management applications). Beyond that, the Customer is not permitted to use the HGS Data. In particular, it is prohibited to disclose, copy, amend, transfer, reproduce, decompile, reverse engineer the HGS Data or parts of them, or to allow them to be used by or for third parties; all except as required for the purposes set out in the first sentence of this clause 5.2. A disclosure of the HSG Data in raw data format to a third party is in any event prohibited.
Subcontractors
In providing the contractual services, HGS is entitled to use service providers, suppliers and other third parties ("Subcontractors") at its own discretion and without the need for the consent of the Customer. Subcontractors shall be carefully selected prior to their deployment and shall be subject to periodic reviews by HGS. HGS is entitled to substitute or appoint new Subcontractors at any time without notifying the Customer.
Warranty
7.1 The Service will be provided subject to its actual availability. HGS shall endeavour to minimise downtime as well as operational or maintenance related unavailability as much as possible, to use reasonable efforts to schedule periods of planned unavailability in times with lower system utilization and to remedy all downtime and disruptions within a reasonable period.
7.2 HGS warrants that the Service meets the contractual requirements and that its use by the Customer in accordance with these Terms does not infringe any rights of third parties. Any non-maintenance related downtime, disruptions and errors or infringements of third party rights that occur nonetheless shall be notified by the Customer to HGS without undue delay.
7.3 Unless otherwise provided herein, HGS gives no warranty regarding the accuracy, completeness and plausibility of the data available on the Platform and made accessible through the Service. Evaluation of the data is the sole responsibility of the Customer. Where within the Service HGS provides recommendations these recommendations are based on general principles or derived from empiric data and may not apply to each specific case/vehicle. Any arrangements or decisions made by the Customer on the basis of data or recommendations provided by HSG are at the sole responsibility of the Customer.
7.4 HGS will remedy defects of the Service within a reasonable time period at its own option either through an amendment or adjustment of the Platform and/or the Service or through a reasonable work-around. If the remediation of the defect fails a second time, the Customer shall be entitled to proportionally reduce the remuneration due for the affected Service, or to terminate the Contract, when a continued adherence would result in an undue burden for the Customer.
7.5 Any potential damage claims of the Customer are subject to clause 8. Any further warranty claims of the Customer are excluded.
Liability
8.1. Irrespective of the legal basis, where liability is based on fault, HGS's liability for damages caused by intentional acts and gross negligence shall be unlimited. In the event of simple negligence, HGS shall only be liable for
8.1.1 damages arising out of injury to body, life or health; and
8.1.2 damages arising from a breach of a material contractual obligation (i.e. an obligation the performance of which is fundamental to the due performance of the contract and the compliance with which the counterparty typically relies upon and is entitled to rely upon); in this case HGS's liability shall be limited to typical and foreseeable losses, but shall in no event exceed a total amount of EUR 10,000 per contract year.
8.2 The foregoing limitations of liability shall not apply to liability pursuant to the German Product Liability Act (Produkthaftungsgesetz) or where HGS violates a granted guarantee.
Indemnity
The Customer shall indemnify HGS against all claims by third parties (including administrative orders or fines), which arise in connection with any violation by the Customer and/or its authorized users of the provisions of these Terms, applicable data protection law or any other legal provision. The Customer shall fully support HGS in the defence of such claims, both in and out of court, and shall compensate HGS for all arising losses together with reasonable costs and expenditure, including legal defence costs.
Term and Termination
10.1 The Contract is concluded for an indefinite term and may be terminated by either Party by providing six months' notice to the end of a calendar year.
10.2 Notwithstanding clause 10.1, the Contract shall terminate automatically and without any notice, if the Customer does not use the Service for a period of six months.
10.3 The right of termination without notice for cause shall remain unaffected. HSG shall, in particular, have cause where (i) the Customer is responsible for a serious risk to the security of the Platform, the Service or the stored data, (ii) where the Customer is in arrears with an amount which equates to two of the average monthly payments by the Customer to HGS in the relevant preceding six months period, or (iii) if the Customer is in breach of the license terms in clause 5.
10.4 Upon termination or expiry of the Contract, all rights of use of the Customer to the Service and the HGS Data (including HSG Data stored or controlled by the Customer) shall cease, unless specifically agreed otherwise, and the Customer shall be obliged to delete without undue delay all copies of HSG Data that are stored or controlled by the Customer.
Charges
11.1 The charges of HGS for the Service are set out in the HGS price list (as updated from time to time) published on the Website. Prices are exclusive of applicable value added tax and in euros.
11.2 HGS requires a pre-payment of any charges incurred by the Customer. Prior to using any Services Customer shall effect a pre-payment to HGS which shall be credited by HGS to the Customer's account after deduction of the transaction fee set out in the price list. Any charges incurred by the Customer for the use of the Services will then be debited against the Customer's account.
11.3 After every pre-payment, HGS will provide the Customer with an invoice reflecting the pre-payment. Furthermore, HGS will provide a monthly invoice/breakdown setting out the charges that HGS has debited against the Customer's pre-payments during the preceding calendar month and the Customer's remaining credit (if any).
11.4 If the balance on the Customer's account is fully used up, HGS is permitted (but not required) to suspend the Service for the Customer until a new pre-payment is received. To avoid suspension of the Service Customer may choose to authorize HGS to automatically re-charge the Customer each time the balance us fully used up (automatic re-charge). Such automatic re-charge shall be in the same amount as the previous pre-payment and shall be made using the same payment method. Customer may cancel the authorization for the automatic re-charge at any time.
11.5 Upon expiry or termination of the Contract any unused balance will be repaid to the Customer.
Amendments
12.1 HGS is entitled but not obliged to further develop and amend the characteristics and functionalities of the Platform and the Service in the future, and, in particular, to update the API specification accordingly, as long as the fundamental characteristics and functionalities of the Platform and the Service as of the date of the Contract conclusion remain in existence. HGS shall provide the Customer with at least six months' prior notice of material amendments in an appropriate manner.
12.2 HGS shall be entitled to unilaterally adjust the charges payable for the Service on provision of three months' notice in text form. The Customer shall be entitled to terminate the Contract in writing within one month of receipt of the above notification, whereby such termination shall take effect from the date from which the adjusted charges would have applied. If the Customer does not terminate within this time period, the adjusted charges shall apply from the date identified in the notification. HGS shall expressly notify the Customer of this extraordinary right of termination when providing notice of the adjusted charges.
12.3 Any proposed amendments to the Contract shall be notified by HGS to the Customer in text form at least two months before the proposed date on which they take effect. If the Customer does not agree with the amendments, it may terminate the Contract in writing within one month following receipt of the notification, to take effect from the proposed effective date of the amendment. Where no notice of termination is received, the Customer shall be deemed to have consented to the amendments. HGS shall expressly notify the Customer of this consequence when providing notice of the contractual amendment.
Confidentiality
13.1 The Parties undertake to keep all information obtained by them from or about the other Party in connection with the Contract ("Confidential Information") confidential. With respect to HGS Data clause 5 shall apply.
13.2 Confidential Information may only be used for the purposes of the implementation of the Contract. The Parties shall protect the Confidential Information from unauthorized access by third parties and will, in particular, not disclose or make said information accessible to third parties without the written consent of the other Party, except to the extent that such disclosure is permitted under this Contract.
13.3 The Parties shall make the Confidential Information of the respective other Party accessible only to employees who require said information for the purposes of the Contract. The Parties are obliged to require their relevant employees to maintain secrecy within the scope permitted by law and also for the period following the end of the working relationship. The provision of Confidential Information to affiliated companies (section 15 German Stock Corporation Act) and sub-contractors (or their relevant employees) is only permitted where the provision is necessary for the purposes of implementing the Contract. In this case, affiliated companies and sub-contractors shall be made subject to similar obligations of secrecy as contained in this clause 13.
13.4 The confidentiality obligations shall not apply to information which
13.4.1 is generally known at the time of communication or becomes known later without violating an obligation of confidentiality;
13.4.2 was already demonstrably in the possession of the receiving Party at the time of communication or was demonstrably known to it;
13.4.3 was developed independently of the Contract by the receiving Party without the use of Confidential Information from the other Party; or
13.4.4 was disclosed to the receiving Party by a third party without violation of a duty of confidentiality to the disclosing Party and without imposing any confidentiality obligation.
13.5 Each Party may disclose or provide Confidential Information to third parties, to the extent that it is required to do so on the basis of mandatory statutory provisions, requests by government bodies (in particular regulatory authorities), capital market disclosure obligations or a court decision. The other Party shall be informed of this as early as possible, to the extent legally permitted. Disclosure and/or provision must be restricted to the extent required.
13.6 The duty of confidentiality shall apply until the expiry of three years following the end of the Contract.
Miscellaneous
14.1 No claims arising out of the Contract may be assigned either in full or in part to third parties without the written consent of HGS. Any set-off rights or retention rights of the Customer shall be limited to counterclaims that have been established by a binding judgment or are undisputed.
14.2 Subject to clause 12, any amendments and supplements to the Contract require the written form to be valid. This also applies to any amendment to this requirement of the written form. The written form may, in addition to the statutory written form pursuant to section 126 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), also be complied with by the electronic form pursuant to section 126a BGB or the text form pursuant to section 126b BGB.
14.3 This Contract is governed by German law with the exclusion of (i) its conflict of laws provisions and (ii) the United Nations Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising from and in connection with the Contract is Berlin.
14.4 Should any provision of the Contract be or become invalid in whole or in part, or should the Contract contain any omission, the effectiveness of the remaining provisions shall not be affected. The invalid or omitted provision shall be replaced with retrospective effect by an effective and enforceable provision which most closely legally and commercially approximates that what the Parties have intended or would have intended in accordance with the purpose of these Terms had they considered the point when concluding the Contract.
