§ 1 Scope and priority
1. These general terms and conditions (hereinafter “GTC”) apply to the temporary provision of the rental software “5 Anker Portal” (hereinafter “software”) to companies, legal entities under public law and special funds under public law (im Hereinafter referred to as “customers”).
3. 5 Anker is entitled to change the terms and conditions. The customer will be informed of new versions of the GTC in writing or by email, highlighting the changes. They become effective if the customer does not object to the new version within 6 weeks of receipt of the notification of change in writing or by email. The customer will be expressly informed of the consequences of his inactivity when the changes are communicated. If the customer objects to the new version of the terms and conditions within the above-mentioned period, the contractual relationship continues with the original conditions, but can be extraordinarily terminated by 5 Anker with a notice period of 2 weeks.
§ 2 Offer and conclusion of contract
1. Offers from 5 Anker are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or assignments from the customer can be accepted by 5 Anker within fourteen days of their receipt.
2. The presentation of the products and services on the website does not yet represent a legally binding offer, but merely a non-binding invitation to the customer to submit an offer. With the completion of the customer’s order by clicking on the “Book with obligation to pay” button, the customer submits a binding offer to conclude a contract. Before completing the order, the customer can check his order data again on a separate page and make corrections if necessary (e.g. select a different payment method).
3. 5 Anker will confirm receipt of the customer’s electronic order by sending an automatic confirmation of receipt by email. This confirmation of receipt does not yet constitute a binding acceptance of the customer’s offer. It only serves to inform the customer that his order has been received. The contract is only concluded with a separate order confirmation from 5 Anker or at the latest when the offer is activated for the customer. 5 Anker is free not to accept orders from the customer; the decision about this is at the discretion of 5 anchors.
4. After the customer has placed an electronic order via the 5 Anker website, the customer’s individual order data is saved by 5 Anker. The customer can also call up his order data via the website after completing the order process. In addition, each customer can print out his order data while placing his order and will also receive it again in the automatic confirmation of receipt (including the terms and conditions included in the contract). The current version of the terms and conditions can also be called up and printed out on the 5 anchor page at any time. Contracts for the website are concluded in German.
§ 3 Scope of Services
1. 5 Anker will provide the customer with the software (in its currently released version) for the duration of the contract within the framework of the agreed availability, ready for use via the Internet. Software updates are made available to the customer centrally during the contract period. Together with the software, the customer receives electronic user documentation in German. The functional scope of the software results in detail from the descriptions on the 5-anchor website and in the user documentation.
2. 5 Anker provides the customer with storage space on a virtual data server in an external data center for the storage of his fleet data collected and managed with the software as well as his end customer data (hosting). The range of services also includes the provision of a template, on the basis of which the customer can set up his own, individually designed online booking option for his end customers.
3. 5 Anker guarantees an availability of the software (including access to the data stored by the customer) at the transfer point (ie at the router exit of the data center commissioned by 5 Anker) of 99% in the calendar year average. Unavailability is to be assumed if the software is not available to the customer due to circumstances for which 5 Anker is responsible. In particular, unavailability is not to be assumed if the software is due to
- Incorrect operation or use in violation of the contract by the customer,
- planned and announced maintenance work,
- technical problems outside the sphere of influence of 5 anchors (e.g. with the Internet connection outside the data center) or
- force majeure
- is not reachable
5 Anker will endeavor to announce planned maintenance work to the customer with a reasonable lead time. In total, the duration of planned maintenance work must not exceed 10 hours per month.
4. 5 Anker can temporarily restrict the customer’s access to the software if this is necessary for operational security, maintaining network integrity, avoiding serious disruptions to the network, software and / or stored customer data. In making such a decision, Anker will take reasonable account of the legitimate interests of the customer, immediately inform the customer of the measures taken and do everything reasonable to remove the access restriction as soon as possible.
5. During normal business hours of 5 anchors (Monday to Friday between 9:00 am and 5:00 pm, excluding public holidays, as well as December 24th and 31st of each year), the customer is available to answer questions about the application and use of the software Hotline available. The contact details are available on the 5-anchor website.
6. 5 Anker is entitled to provide the contractually agreed services through third parties as a subcontractor.
7. As part of the continuous improvement and further development of the software, new functions and services can be added and partial functions or partial services can be changed or omitted during the contract period, provided this is reasonable for the customer and the achievement of the contractual purpose is not endangered.
§ 4 Provision of services
1. If the contracting parties conclude a separate agreement on the provision of services (e.g. customizing and / or supplementing the software through customizing or individual programming, adapting and / or creating forms, migrating data, etc.), the following shall apply Paragraphs of this § 4.
2. If 5 Anker creates a specification sheet together with the customer, the customer will check the specification sheet immediately after handing it over to him and release it to 5 Anker in writing or by email; the regulations for acceptance in paragraph 4 apply accordingly to the release of the specification sheet. Subsequent changes to the services compared to the description in the specification require a separate agreement. Unless otherwise agreed, all services provided are to be remunerated by the customer separately according to expenditure.
3. The customer receives simple rights of use for customized adaptations and / or additions to the software as well as for other individual work results (e.g. on created forms) in accordance with the more detailed provisions of Section 10 of these General Terms and Conditions. 5 Anker may, at its own discretion, incorporate such adaptations and / or additions to the software and the forms into the standard of the software and, for example, make them accessible to other customers for use as part of a generally available update.
4. Insofar as an acceptance of services has to take place due to legal regulations or the implementation of an acceptance procedure is expressly agreed between the contracting parties, services shall be deemed accepted at the latest if
a. the work results have been handed over and, if 5 Anker also owes the installation or implementation of the work results, the installation or implementation has been completed,
b. 5 Anker has informed the customer of the readiness for acceptance with reference to the acceptance fiction according to this paragraph and has asked him to accept, and
c. (i) ten (10) working days have passed since the request for acceptance without the customer having given notice of defects preventing acceptance, or (ii) the customer with productive use
the work results have started (i.e. not only put them into operation for test purposes).
Only essential defects that prevent or severely limit the usability of the work results for the agreed or assumed purpose prevent acceptance.
§ 5 Obligations of the customer
1. The customer is responsible for ensuring that the minimum technical requirements for the hardware and software used by him (in particular the current version of the current Internet browser) and for his Internet connection are met for the contractual use of the software; the minimum technical requirements are summarized in the user documentation. As part of its duty to minimize damage, the customer shall also take appropriate precautions in the event of data loss (e.g. by making regular data backups, regular checking of its IT systems
Etc.). The customer is responsible for the proper archiving and backup of his data through the regular and risk-appropriate making of backup copies.
2. The customer is responsible for his own website based on the template provided by 5 Anker, in particular with regard to the legal conformity of the content posted on the website and compliance with other legal requirements, e.g. with regard to the provider identification (imprint ), the data protection declaration, compliance with the other provisions of e-commerce and distance selling law as well as competition law and travel law (e.g. when drafting the charter contract that may be deposited by the customer). The customer becomes his end customers clearly and transparently in particular through the data processing by 5 anchors and their purpose
enlighten. In his sphere of influence, the customer bears sole responsibility for compliance with all requirements for a legally compliant design of the website and the ordering or booking process according to the law applicable to him. In this respect, Anker does not assume any obligation to provide advice to the customer.
3. At the time of uploading, the customer grants 5 anchors a non-exclusive right of use that is limited to the duration of the contract and spatially unrestricted to the copyrighted content uploaded by him to his website (e.g. texts, photos, etc.). In terms of content, the right of use is limited to the exploitation of the content (in particular by copying it and making it publicly available) for the purpose of fulfilling the contract. The customer assures that he has the necessary copyrights and that the use of the content by 5 Anker does not infringe any third party rights. In the case of content that clearly identifies persons, the customer will obtain the consent of the depicted persons (or their legal guardians) for use before uploading.
4. The customer undertakes not to distribute any content (e.g. pictures, videos, names) with an offensive, pornographic or other morally reprehensible or offensive, in particular racist, character or to link to such content. In addition, the customer undertakes not to use any legally protected terms, names or brands. The customer is not permitted to distribute advertising references to third-party providers via the system. The customer will always observe all relevant legal provisions, in particular regarding the protection of minors, data protection, protection of personal rights, as well as in the areas of criminal law, copyright and trademark law. In particular, the customer is prohibited from publishing or distributing content on his website that contains
- violate applicable law, or are improper or immoral;
- Infringe trademarks, patents, utility models, copyrights, designs, trade secrets or other property rights of third parties;
- obscene, racist, glorifying violence, pornographic, harmful to young people or
- otherwise endanger or impair the development of children and adolescents;
- are offensive, harassing or defamatory in nature;
- have personal data from third parties without their express consent.
5. The customer is prohibited from passing on his personal access data to the software to unauthorized third parties. In addition, the customer may only enter his own vehicles or vehicles provided by contract into the system and release them for marketing. The use of vehicles from third-party companies, however, is strictly prohibited. Access data must be stored in a safe place so that third parties cannot access them. The customer will notify 5 Anker immediately if there is a suspicion that unauthorized third parties may have gained knowledge of them.
6. If the customer suspects a violation of his obligations regulated in this § 5, 5 Anker is entitled to temporarily block the customer’s access to the software. The customer releases 5 Anker from all claims that third parties assert against 5 Anker due to the infringement of their rights by the content uploaded by the customer or due to the breach of other obligations by the customer; the customer also bears the costs of the necessary legal defense of 5 anchors. This does not apply if the customer is not responsible for the breach of duty. Further claims by 5 anchors remain unaffected.
§ 6 prices and terms of payment
1. The amount of the usage fee results from the offer from 5 Anker or is displayed to the customer as part of the online ordering process. It is based on the number of users licensed by the customer. The user fee will be invoiced to the customer in full in advance at the beginning of the contract period or, depending on the agreed payment method, debited from his account. Unless otherwise agreed, services provided are to be remunerated by the customer according to expenditure and will be invoiced by 5 Anker monthly at the beginning of the month following the provision of the service.
2. 5 Anker is entitled to increase the usage fee at the end of the respective term of the customer contract in accordance with the cost increases that have occurred (eg data center costs), up to a maximum of 10%. 5 Anker will announce such a price increase to the customer in good time so that the customer can properly terminate the contract at the end of the respective contract period, ie when the price increase takes effect. If the customer does not exercise his right of termination, the contract continues at the increased price. 5 Anker will inform the customer of this effect when notifying the price increase. Notwithstanding this, 5 Anker is entitled to adjust the usage fee if the software is supplemented with additional modules, functions, etc. during the current contract period; Whether the customer makes use of such chargeable additional modules, functions, etc. is at his discretion.
3. All prices are exclusive of the applicable statutory value added tax. All payments are to be made by the customer within 14 calendar days of the invoice date without deduction.
4. 5 Anker can engage an external service provider to process payment transactions and assign their payment claims against the customer to them. In this case, the external service provider only receives the customer’s data required for payment processing.
5. After the payment term has expired, the software will continue to be made available in restricted mode. This primarily affects all third-party services, such as all mail traffic. The customer receives a message about this status on his screen. If the customer is in arrears with the payment of a substantial part of the owed remuneration, 5 Anker is entitled, after a previous reminder and threat of blocking, to block the customer’s access to the software until all outstanding and due claims have been settled in full. Further rights of 5 Anker due to default in payment remain unaffected.
§ 7 claims due to defects
1. 5 Anker guarantees that the software and the other services correspond to the product or service description and are free from third party property rights that prevent or restrict the use in accordance with the contract. Claims can only be asserted by the customer due to defects that are reproducible or can be described in a comprehensible manner by the customer. Functional impairments of the software that result from the customer’s hardware or software environment, incorrect data, improper use or from other circumstances arising from the customer’s area of responsibility do not constitute a defect.
2. If a defect occurs, the customer must inform 5 Anker about this immediately. Duly reported defects in the software will be remedied by 5 Anker within a reasonable period of time during the term of the contract within the framework of the maintenance and repair obligations covered by the usage fee. If the elimination of defects finally fails and if this represents an important reason for the customer, the customer is entitled to extraordinary termination of the contract without observing a period of notice. A termination due to an insignificant defect is not possible. 5 Anker pays damages and reimbursement of wasted expenses only within the limits of § 9.
§ 8 Infringement of third party property rights
1. If third parties assert claims based on the violation of their property rights against the customer due to the use of the software, the customer will immediately inform 5 Anker in writing and comprehensively. 5 Anker is entitled, but not obliged, to conduct the dispute with the third party in and out of court alone. If 5 Anker makes use of this authorization, the customer will support 5 Anker to a reasonable extent free of charge. The customer will not recognize the claims of the third party on his own initiative.
2. If the software has a legal defect, 5 Anker provides the customer with a legally flawless option to use the software. 5 Anker can alternatively replace the software in whole or in part for equivalent ones if this is reasonable for the customer. If an infringement of third-party property rights and / or a legal dispute over corresponding third-party claims can be avoided or ended by the fact that the customer uses a new software version made available by 5 Anker, he is obliged to take over and use it as part of his duty to minimize damage because the exchange is unreasonable for him.
3. 5 Anker will indemnify the customer within the limits of liability of § 9 from all damage caused by the infringement of property rights, insofar as this is based on a legal defect for which 5 Anker is responsible. In addition, the provisions for material defects in Section 7 of these General Terms and Conditions apply accordingly to the customer’s claims based on defects of title.
§ 9 liability
1. Contrary to the legal regulation of § 536a BGB, 5 Anker is only liable for defects in the software provided that were already present when the contract was concluded if 5 Anker is responsible for such defects. If 5 Anker provides services to the customer without any payment being made, e.g. the provision of the software during a free test phase, 5 Anker is only liable for willful and grossly negligent breaches of duty.
2. In addition, 5 Anker pays damages or reimbursement of wasted expenses, regardless of the legal reason (e.g. breach of contractual duty, tort), only to the following extent:
- in the case of intent and gross negligence in the full amount
in all other cases only in the event of a breach of an essential contractual obligation, which is essential for achieving the purpose of the contract and on the fulfillment of which the customer can therefore rely, namely, limited to the replacement of the typical and foreseeable damage
however, for each case of damage and for all cases of damage in a calendar year together to 10 times the agreed (annual, if necessary extrapolated to the year for a shorter term of the contract) usage fee, but at least to EUR 25,000 for all cases of damage in a calendar year together (as a maximum Upper limit).
3. In the event of data loss, 5 Anker is only liable for the damage that would have occurred if the customer had backed up data on a regular basis, unless 5 Anker caused the data loss intentionally or through gross negligence.
4. The legal liability for personal injury and according to the product liability law remains unaffected by the above regulations. 5 Anchor the objection of contributory negligence is open.
§ 10 Granting of usage rights to the software
1. The copyrights and other property rights to the software, including the software created by 5 Anker or customized for the customer, as well as other customer-specific work results (documentation, forms, etc.), remain exclusively with 5 Anker in relation to the customer.
2. The customer receives the non-exclusive, non-transferable and non-sublicensable right to the software and the other contractual services, limited in time to the term of the contract, to use these for his business purposes by the agreed number of simultaneously accessing users. The software may be used by the customer for fleet management purposes (e.g. for yachts, cars, etc.); The intended use of the software results from the corresponding description of the purposes on the 5-anchor website.
3. All rights going beyond this, in particular the right to reproduction, distribution (in any form) including renting, editing and use of the software for or by third parties, remain with 5 Anker.
4. The customer may not change or remove 5 Anker’s copyright notices.
§ 11 Confidentiality and data protection
1. The contracting parties undertake to maintain secrecy about all company and business secrets of the respective other contracting party entrusted to them, made accessible or otherwise known, as well as about other recognizable confidential operational facts, and to use such confidential information only for the contractually intended purpose and they Not to reveal to unauthorized third parties.
2. 5 Anker will process and use the customer’s personal data to fulfill the contractually agreed services. A transfer of personal data of the customer to third parties takes place exclusively for the purpose of the fulfillment of the contract as well as for payment processing and otherwise only if the customer has given his consent beforehand.
3. If the customer processes personal data of third parties (in particular those of his end customers) within the framework of the contract with 5 Anker, he is responsible as the responsible body for compliance with the data protection regulations. The customer ensures that the relevant legal requirements for transmission to and processing by 5 anchors are met; in particular, the customer will inform his end customers accordingly about the handling of their personal data. If 5 Anker processes personal data on behalf of the customer, the contracting parties conclude an agreement on order data processing. 5 Anker is entitled to pass on such data to subcontractors (in particular the operator of the external data center commissioned) for the purpose of fulfilling the contract.
4. If the customer agrees to be named as a reference customer, 5 Anker may use and reproduce the name of the customer as well as his company identification, brands and logos in printed publications and on the 5 Anker website for their own advertising purposes.
§ 12 Term and Termination
1. The contract has a term of one contract month. The contract is automatically extended by the duration of the expired contract period if it is not terminated by one of the contracting parties with a notice period of 2 weeks to the end of its respective term in writing or by email.
2. The right of both contracting parties to terminate the contract for good cause remains unaffected. For 5 anchors, an important reason exists in particular when insolvency proceedings are opened against the customer’s assets or the opening of insolvency proceedings is rejected due to insufficient assets, if the customer is in arrears with a not insignificant part of the remuneration due for more than 4 weeks or if he violates essential contractual obligations in any other way and does not cease this violation within 1 week even after a corresponding request by 5 anchors. The termination must be made in writing or by email.
3. At its discretion, 5 Anker can initially block the customer’s access to the software if there is an important reason and request the customer to remove the important reason or to properly fulfill the contract by setting a deadline. Further rights of 5 Anker (in particular the right to payment of the agreed remuneration and the right to extraordinary termination) remain unaffected. If the contract is terminated by 5 Anker for an important reason for which the customer is responsible, 5 Anker retains the right to full remuneration until the end of the current contract period.
4. For a period of 30 days after termination of the contract (and at any time during its term), the customer has the option of downloading and exporting the data he has saved on the hardware provided (as CSV files, ie without logical linking of the data). 5 Anker is not obliged to save, archive and / or hold the customer’s data for access by the customer beyond the specified period.
§ 13 final provisions
1. An assignment or transfer of contractual rights and obligations by the customer to third parties – including affiliated companies of the customer – requires the prior written consent of 5 Anker.
2. All changes and additions to the contract must be made in writing to be effective (fax is sufficient, e-mail is not). The written form requirement can only be waived in writing.
3. German law applies to the exclusion of the conflict of laws rules of international private law and the UN sales law. The place of jurisdiction for all disputes arising from and in connection with the contract is the court responsible for the headquarters of 5 Anker. 5 Anchor has the right to bring an action at any other nationally or internationally competent court.
4. Should individual provisions of these terms and conditions or the individual contract be or become ineffective, or should the contract contain a loophole, this shall not affect the validity of the remaining provisions. Instead of the ineffective or missing provision, the parties agree on such an effective provision that comes closest to what they wanted economically at the time of the conclusion of the contract.