§ 1 General
a) Scope of Application
The present General Terms and Conditions apply for all business relationships between AZOWO GmbH, Wolfentalstraße 29, 88400 Biberach an der Riß, represented by its Managing Directors Albert Pescheck, Patric Schneider, and the customer, in the version currently valid at the point in time of contract completion. Any contradictory general terms and conditions of the customer are hereby excluded.
b) Contractual Agreement
The contract language is German. The use is reserved for legally competent persons of legal age who are entrepreneurs according to § 14 of German Civil Code.
c) Subsequent Amendments to These General Terms and Conditions
AZOWO GmbH reserves the right to make subsequent amendments or additions to the General Terms and Conditions affecting existing business relationships, where changes to legislation or case law require it, or where any other circumstances result in a situation where the contractual equivalency relationship is impaired to more than a negligible degree. A subsequent amendment to the General Terms and Conditions will take effect when the customer fails to object within a period of six weeks following notice of the amendment. AZOWO GmbH will notify the customer explicitly at the beginning of this period of notice that remaining silent signifies an effective consent to the amendments to the contract and provide the customer with an opportunity to submit an explicit statement regarding the change within the period of notice. If the customer objects before the period of notice expires, both AZOWO GmbH and the customer may terminate the contract extraordinarily.
§ 2 Contract
a) Contents of Contract
AZOWO GmbH offers its customers a vehicle pool solution and a carsharing solution. These can be used through a web- and app-based platform. Customers can lease telematics boxes for their vehicles from AZOWO GmbH, which are installed in the customers’ vehicles. In addition, the customers receive a cloud-based software solution for their vehicle fleet from AZOWO GmbH.
b) Formation of Contract
The formation of contract for the individual conceptual solutions is to take place individually through the tendering of an offer and its acceptance (e.g. per email). No retention of the contract text takes place, as the contents of the respective contract result individually from the agreement made.
c) Offers, Term of Acceptance
Offers from AZOWO GmbH are non-obligatory and non-binding, provided that they are not explicitly identified as binding. This identification can also be made through the stipulation of a specified term of acceptance. AZOWO GmbH reserves the right to accept orders and assignments within a period of ten days.
The contract must be completed in text form. All contractual agreements and accompanying agreements must thus be made in text form.
e) Download via App Store or Play Store
The app from AZOWO GmbH is available from the Apple App Store as well as from the Google Play Store. The download transaction is processed by the respective app store. A user account is necessary in order to effectuate the download. This account can be set up by the user in the App Store or Play Store. The respective Apple and/or Google terms and conditions apply for the use of the two stores.
f) Duration and Termination
The customer can choose between the following contract durations:
• 12 months, cancellation period is one month before end of current term
• 24 months, cancellation period is three months before end of current term
• 36 months, cancellation period is three months before end of current term
If the Customer does not terminate the Agreement within the period of notice provided, the Agreement is automatically renewed for a further year. An extraordinary termination on the part of the customer or AZOWO GmbH remains unaffected thereby. Contract cancellations must be done in text form in order to take effect.
The rights of the customer resulting from this contract are not transferable. The password that enables the customer access to the personal area, and thus also to the data recording and storage, is to be treated as strictly confidential and may absolutely not be given to third parties under any circumstances. The customer agrees to take applicable and appropriate measures to prevent third parties from learning this password.
§ 3 Intellectual Property Rights
a) Copyright Protection
The software made available in the scope of the completed contract is protected by copyright. All rights resulting from copyright law appertain solely to AZOWO GmbH. These intellectual property rights encompass in particular the complete programme code, as well as the structure, visual appearance and design of the applications of the software. Any varying reproduction, transfer, alteration etc. is prohibited without explicit permission from AZOWO GmbH. This also applies in cases where the realised project was specified according to proposals from or collaboration with the customer.
b) Limitation on Usage Rights
The customer is prohibited to use the software and the designs for other purposes or projects than those previously agreed upon.
c) Updates and Upgrades
AZOWO GmbH reserves the right to alter the software in the scope of (necessary) updates and upgrades. These alterations are also subject to copyright protections.
§ 4 Implementation and Planning
a) Obligations of the Customer
The sketches, calculations and software contents to be realised and produced by AZOWO GmbH are to be categorically reviewed by the customer for correctness and accuracy in relation to the agreed specifications and functionality prior to any execution or implementation. Any changes to these are to be indicated in writing and require confirmation or approval by AZOWO GmbH.
If AZOWO GmbH suffers damages or losses through the violation of one or more of the above named obligations, the customer must provide recompense to AZOWO GmbH for the resulting losses, as long as the former is responsible for the violation of their obligations.
c) Intellectual Property Rights and Licensing
The contents of the calculations, plans, drawings and other documents which AZOWO GmbH hands over to the customer, including all authorised copies, are the material and intellectual property of AZOWO GmbH.
With the handing over of documents and transfer of the software, AZOWO GmbH transfers a non-exclusionary right of utilisation to the customer in the extent agreed upon in the contract. Any use exceeding this right, especially a transfer to third parties, is fundamentally prohibited without the express written consent of AZOWO GmbH.
§ 5 Obligation
a) Provision of Services
AZOWO GmbH reserves the right to task third parties with fulfilling the contract or parts of the contract.
b) Delays in Delivery and Services
AZOWO GmbH cannot be held responsible for delays in delivery or performance of services caused by force majeure or caused by exceptional and unforeseeable events that could also not have been prevented with the utmost care on the part of AZOWO GmbH (these include in particular strikes, decrees by government agencies or courts and cases of incorrect or improper delivery by third parties in spite of business activities intended to prevent such shortfalls). The aforementioned circumstances grant AZOWO GmbH the right to postpone the delivery or performance for the duration of the impeding circumstance.
In the case of unavailability resulting from the previously mentioned reasons, AZOWO GmbH may withdraw from the contract. AZOWO GmbH pledges in this connection to inform the customer without delay about said unavailability and to potentially reimburse the former promptly for already received services or payments in return.
AZOWO GmbH assumes no guarantee for the continuous availability of the offered services, though it does guarantee an availability of said services of 99.7 % on average annually. Excluded hereby are such deficiencies or delays in performance for which AZOWO GmbH cannot be held responsible. In addition AZOWO GmbH provides no assurance that the offered services or parts thereof can be made available for and used from any potential location.
e) Technical Requirements and Authorisations, Notice in Case of Inability to Gain Access
The use of the services and products provided by AZOWO GmbH requires corresponding compatible devices and software as well as sufficient Internet access. In particular, the telematics box in the vehicle must possess sufficient Internet access in order to carry out the booking procedure. The customer is responsible for immediately informing AZOWO GmbH in the event that the booking or sign-out after use of the vehicle cannot be performed due to lack of proper access to the Internet.
Authorisations and access rights can be assigned for each user or workspace and for each module.
f) Account Limitation
AZOWO GmbH reserves the right to limit the number of accounts associated with a device or the number of devices associated with an account.
§ 6 Payment
Prices are derived from the respective current price list. All indicated prices do not include value added tax. Customers can pay by bank transfer or grant direct debit authorisation for AZOWO GmbH.
b) Delayed Payment
The customer is late paying when the payment has not yet been credited to AZOWO GmbH within 7 days after the customer received the invoice. In the event of such a delayed payment, interest will be charged at a rate of 9 percentage points above the base interest rate of the European Central Bank. If the customer should get behind in payment as described, AZOWO GmbH reserves the right to charge a reminder fee in the amount of 2.50 euros. This does not nullify AZOWO GmbH’s right to assert a further claim to compensation for damages. The customer retains the possibility to prove that AZOWO GmbH has suffered negligible damages or none at all.
c) Right of Retention
The customer can only assert a right of retention for those counterclaims that are due and are based on the same legal relationship as the customer’s obligations.
d) SEPA Payments and Pre-Notification
Invoices can be settled using the SEPA direct debiting procedure. To this ends, the customer grants AZOWO GmbH an appropriate authorisation (SEPA core mandate, or where possible a SEPA company mandate). If invoices for deliveries and services are paid using the SEPA core direct debit procedure or company direct debit procedure, the customer receives an advance notice of the impending direct debiting. The notice period for this pre-notification is abbreviated to one day for B2B SEPA direct debit transactions. With CORE, the standard direct debit transaction, the period of notice is shortened to 5 days for a first-time direct debit transaction (FRST) or one-off direct debit transaction (OOFF), and to 2 days for a recurring debit transaction (RCUR). The customer pledges to ensure that their account is covered by sufficient funds. Expenses resulting from non-redemption or back transfer of the direct debit charge must be paid by the customer, as long as said non-redemption or back transfer was not caused by AZOWO GmbH.
§ 7 Leasing
a) Leasing Period
The leasing period is coupled to the duration of the contract.
b) Obligations of the Customer
The customer is not permitted to rent or lease the devices to anyone else. The devices are to be handled carefully and properly, and operated in the correct manner and according to guidelines.
c) Fault of the Customer
If devices are destroyed due to the customer’s own fault or it is foreseeable that their use will be rendered limited or impossible by a circumstance for which the customer is responsible, AZOWO GmbH may refuse to provide replacement devices. A termination of the contract on the part of the customer according to § 543 II Nr. 1 of German Civil Code is not possible in this case.
d) Late Returns
The regulation in § 545 of German Civil Code is expressly excluded. If the customer does not return the devices to AZOWO GmbH upon conclusion of the agreed use period, or fails to hand them over at the agreed date, AZOWO GmbH is entitled to demand a usage fee in the amount of the agreed leasing fee for the period of time of the withholding of the devices that extends beyond the original contract period. The demand for such an additional usage fee does not nullify AZOWO GmbH’s right to assert any further claims to compensation for damages exceeding this. An extension of the leasing period is only possible after receiving the explicit consent of AZOWO GmbH in text form. The right to use the devices only applies for the duration of the agreed usage period. Continued use of the devices beyond the conclusion of the agreed leasing period fundamentally does not effectively represent an extension of the leasing agreement, regardless of whether AZOWO GmbH has expressed an explicit objection or not.
e) Extent of Liability During the Agreed Usage Period and After Completion of Said Period
The customer is liable for any damages that go beyond normal use or wear, provided they are responsible for said damages.
§ 8 Warranties for Contracts for Work and/or Services
a) Warranty Claim
If the work is found to be deficient and the customer demands rectification, AZOWO GmbH can choose whether to eradicate the flaw or manufacture a new work. In the event that said deficiencies still persist after at least two attempts to alleviate them, the customer has the right to withdraw from the contract or claim a reduction in price. The existence of a negligible flaw merely entitles the customer to an appropriate reduction in price and excludes the right to withdrawal.
b) Liability for Damages
There is no warranty coverage for damages which can be attributed to improper handling or usage. Indemnity for defects is only to be performed in the case of malice or gross negligence. This exclusion does not apply to the liability for damages due to wrongful death, personal injury or health impairment. The regulations of product liability law remain unaffected by the liability disclaimer.
c) Rights in the Case of Minor Defects
The presence of a merely minor defect only entitles the customer to an appropriate reduction of the agreed fee and excludes the right to withdrawal.
d) Statute of Limitations
Warranty claims shall be subject to the statute of limitations within one year after the transfer of risk to the customer.
§ 9 Liability
a) Liability Disclaimer
AZOWO GmbH as well as its legal representatives and proxies are only liable for malice or gross negligence. In the event of a grossly negligent violation of the non-essential contractual obligations, AZOWO GmbH is only liable for the amount of the foreseeable, immediate average damage typical for the contract. Only when essential contractual obligations (hence, those obligations whose fulfilment is of particular significance for the achievement of the purpose of the contract) are affected, does liability also apply for the case of slight negligence. In this regard, the liability is limited to foreseeable, immediate average damage typical for the contract.
b) Liability Caveat
The liability disclaimer above does not apply for the liability for damages due to wrongful death, personal injury or impaired health. The regulations of product liability law also remain unaffected by the liability disclaimer.
§ 10 Closing Provisions
a) Place of Jurisdiction
The registered office of AZOWO GmbH in Biberach an der Riß is agreed by all parties to serve as exclusive place of jurisdiction for all legal disputes related to this contract, provided that the customer is a business person, a corporate body under public law or a public separate estate, or provided that the customer does not have their own place of jurisdiction within the Federal Republic of Germany.
b) Choice of Law
Unless opposing mandatory statutory provisions stipulated by the customer’s home country exist, German law is to be considered valid as the basis of this agreement.
c) Severability Clause
If any one clause of these General Terms and Conditions becomes invalid, the validity of the remaining stipulations shall not be affected.