Performance specification
1. definition
1.1 Part of the contract is the design and structure of a service that enables telemetry and position data of objects equipped with the fleet systems to be visualized via the Internet using a computer.
1.2 Objects are vehicles, machines and other movable objects that are equipped with the systems. The equipment with a hardware unit is mandatory for the function of the services.
1.3 The fleet systems are technical devices that automatically send telemetry and position data to the web portal via the GSM mobile network according to a set sequence or by separate query.
1.4 The web portal is a technical platform that ensures communication with the systems, collects and stores transmitted data and prepares it for display to the customer via the Internet. Via the website provided, Modern Drive Technology GmbH can control communication with the systems using commands that are transferred as data to the GSM mobile network via the web portal and transmitted from there to the systems.
1.5 Position data is obtained from the systems via satellite positioning. The accuracy of this data depends on the GPS system (Global Positioning System) itself and on the environmental conditions of the systems. Exact position data transmission can therefore not be guaranteed. Communication between the systems and the web portal takes place via a GSM mobile network. Sufficient quality and availability of radio coverage at the location of the systems and the resulting immediate, error-free data transmission cannot be guaranteed.
2. scope of services
2.1 The following terms and conditions govern the use of the systems between the customer and Modern Drive Technology GmbH (hereinafter referred to as "MDT"), Rettichstraße 7, D-92318 Neumarkt as the operator of the services.
2.2 The contract is concluded on the basis of a written contract of use using the form provided for this purpose and after acceptance by MDT, which takes place at the latest by activating the service for the customer.
2.3 All ancillary agreements and other agreements must be made in writing to be binding.
3. provision of services, warranty, liability
3.1 Within the scope of the contract, MDT shall provide the scope of services described in the "Service Description".
3.2 MDT is not liable for the regional, temporal and qualitative availability of the GSM mobile network. In particular, MDT is not liable for the fact that data can be transferred to the mobile network within a specified time and that data transferred to the network can be delivered to the MDT center.
3.3 MDT shall not be liable for the regional, temporal and qualitative availability of the signal supply by the GPS satellite system. In particular, no liability is assumed for the accuracy of the transmitted signals and the position data calculated as a result.
3.4 MDT is not liable for the GSM mobile network and GPS satellite positioning supporting the functions mentioned under "Service Description" in the future. Should these services or their partial functionality not be usable, this constitutes a case of force majeure over which MDT has no influence and which releases MDT from its obligation to perform.
3.5 MDT is not liable for the successful display of the transmitted data. In particular, the Client is not guaranteed a specific format, content or speed of display of the requested data when using the web portal.
3.6 MDT shall not be liable for damages incurred by the Customer through the use of the systems or the web portal, unless they are based on intent or gross negligence. Insofar as a contractual partner is a company within the meaning of Section 14 of the German Civil Code (BGB) or a legal entity under public law, liability for indirect or consequential damages (e.g. loss of profit, loss of savings) is also excluded. In this case, the loss of or damage to data is also not considered damage to property and is not covered by the possible liability claims. In this case, any claims for damages are limited to the amount of the fees payable to MDT.
4. system access
4.1 To access the web portal, the customer uses any Internet access and suitable browser software.
4.2 At the start of the contract, the customer may personally appoint an administrative contact person. This contact will receive confidential access data for the customer's properties, such as a user name and password with administration rights. This access data is only known to the contact person. In particular, the administrative contact must change the password provided immediately after initial access for security reasons.
4.3 The customer has the option of enabling other users to use the web portal by creating additional access data. For data protection reasons, the assignment of further administration rights can only be carried out by MDT.
4.4 All users authorized by the customer shall ensure through careful handling of the access data that unauthorized third parties cannot gain knowledge of this data.
4.5 The access data authorizes the customer or the users authorized by the customer to access and use the web portal, in particular, depending on the rights granted, to retrieve and display received data, to personally configure the web portal, and to set up and manage additional users.
4.6 If unauthorized third parties are granted access to the web portal due to improper handling of the customer's access data by the customer and costs are incurred as a result of unauthorized, improper access, the customer shall be liable for all costs incurred.
4.7 If the customer discovers unauthorized, abusive access to the web portal using the access data of its authorized users, it shall inform MDT of this immediately. Upon receipt of the Customer's notification, MDT will prevent access to the web portal with the previous access data as quickly as possible and provide the administrative contact with new access data. MDT is entitled to charge the customer for the expenses incurred for this.
5. hardware, data communication
5.1 For the entire term of the contract, the systems are equipped with a SIM card that enables communication in the GSM mobile network. If data communication is provided to the customer by MDT, this SIM card remains the property of MDT. The customer is prohibited from removing this SIM card or using it for non-application purposes during the term of the contract.
5.2 If the customer discovers misuse or loss of the SIM card, he is obliged to report the misuse or loss to MDT immediately so that MDT can prevent further misuse or unauthorized use by appropriate means.
MDT is entitled to charge the customer for the associated expenses.
All communication costs incurred up to the time of notification shall be borne by the customer, all communication costs incurred after receipt of notification shall be borne by MDT. 5.3 The hardware shall remain the property of MDT until payment has been made in full.
Terms of contract and payment
6. fees, payment
6.1 MDT shall charge the Customer the fees agreed for the use of the services in accordance with the price list valid at the time of conclusion of the contract at the beginning of each calendar month.
6.2 A data transfer is deemed to have taken place when the data record has been transferred by the systems to the GSM mobile network. The content of the data record is irrelevant here.
6.3 MDT expressly reserves the right to make changes to the usage tariffs. MDT shall notify the customer of these in writing and they shall apply from the 1st of the following month at the earliest. If fees increase, the customer concerned has a special right of termination on the last day of the following month with a notice period of 14 days. In this case, the following month will be billed at the previous prices.
6.4 The costs for the Internet access used by the customer and the costs for the browser software used are not part of this contract for the use of the services.
6.5 Objections to the invoices issued by MDT must be raised with MDT immediately, but no later than 30 days after the invoice date. Failure to raise objections in due time shall be deemed approval.
6.6 MDT reserves the right to completely delete all temporarily stored data from data communication in the GSM radio network after a period of 90 days after invoicing.
6.7 MDT reserves the right to block the Customer's portal access if the Customer is more than 30 days in arrears with all or part of its usage fee or if the direct debit for fees due is not honored or charged back for reasons for which the Customer is responsible. The blocking of access does not release the customer from the obligation to pay the fees incurred up to the time of blocking as well as the full basic fee for the month in which the access is blocked. The costs incurred for blocking and unblocking will be charged to the customer.
6.8 Usage fees are deemed to have been paid if MDT can dispose of the full amount without restriction. Payment with deduction of discounts not agreed upon shall only be deemed partial payment.
7. data protection, SCHUFA clause
7.1 MDT may collect, process and evaluate customer and personal data on the use of services insofar as this is necessary to enable the customer to use the desired services or to invoice the use. The customer agrees that MDT may only provide cooperation partners with the data required to perform the services. This includes in particular affiliated companies and service providers for data communication and IT support.
7.2 MDT shall ensure that all customer-related data is protected against unauthorized access or viewing by third parties. All employees and cooperation partners are bound by confidentiality agreements not to communicate any customer-related data to third parties.
7.3 The Customer declares to MDT that it has obtained all consents required for the use of the services from its employees or all persons equipped with the systems and connected to the web portal for the disclosure of personal data, in particular location-related data, and that it expressly authorizes MDT to provide the services using and storing this data and to disclose the data to MDT's cooperation partners necessary for the provision of the service.
7.4 The customer agrees that MDT may obtain information about him from the SCHUFA company (Schutzgemeinschaft für allgemeine Kreditsicherung) responsible for his place of residence. Irrespective of this, MDT will report data to SCHUFA due to non-contractual processing (e.g. termination due to default of payment, requested default summons in the case of undisputed claims as well as enforcement measures) of this contract. According to the Federal Data Protection Act, these reports may only be made if this is necessary to safeguard the legitimate interests of MDT, a contractual partner of SCHUFA or the general public and if this does not impair the interests of the customer that are worthy of protection.
7.5 SCHUFA stores the data in order to be able to provide its affiliated credit institutions, credit card companies, leasing companies, retail companies including mail order companies and other companies that grant commercial loans to consumers or offer telecommunications services with information to assess the creditworthiness of customers. Address data may be transmitted to companies that collect receivables on a commercial basis and are contractually affiliated with SCHUFA for the purpose of determining debtors. SCHUFA only makes the data available to its contractual partners if they can credibly demonstrate a legitimate interest in the data transfer. The other companies mentioned proceed in the same way. SCHUFA only transmits objective data without specifying the lender; subjective value judgments, personal income and financial circumstances are not included in SCHUFA information. I can / we can obtain information from SCHUFA about the stored data concerning me / us. SCHUFA - Schutzgemeinschaft für allgemeine Kreditsicherung Rhein-Saar GmbH, Widdersdorfer Straße 403, D-50933 Cologne.
8 Contract term, termination
8.1 The contractual relationship shall initially be concluded for a period of 24 months. The contractual relationship shall be extended by a further 12 months in each case, unless one of the contracting parties terminates the contract in writing with a notice period of 3 months to the end of the respective contractual year.
8.2 MDT is entitled to terminate the contractual relationship prematurely for good cause without observing a notice period. Important reasons are in particular the application for and opening of insolvency proceedings, the initiation of extrajudicial or judicial debt settlement proceedings regarding the customer's assets, misuse of the services as well as payment arrears of more than 60 days.
8.3 In the event of premature termination, the outstanding, agreed usage fees shall be charged in one lump sum and become due immediately.
9. other
9.1 The law of the Federal Republic of Germany shall apply to all legal relationships between MDT and the customer, irrespective of where the customer retrieves the data provided or where the customer's systems for which data is retrieved are located. As far as legally possible, Neumarkt i.d.Opf. is agreed as the place of jurisdiction or place of performance.
9.2 Amendments and supplements to these contractual terms and conditions shall apply as of their transmission to the customer, in the case of companies within the meaning of §14 of the German Civil Code (BGB) and legal persons under public law as of their implementation or supplementation.
9.3 Should any of the above provisions be invalid or void, this shall not affect the validity of the other provisions or the concluded contract. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision.
