General terms and conditions oe service GmbH
1. preamble
Various vehicle brands run online portals that provide different manufacturer information in addition to so-called “digital service booklets”. These online portals and, in particular, the digital service booklets there are organized and provided as a central database by the respective vehicle manufacturer. In the digital service booklet, all maintenance data and service work on a vehicle can be entered and stored directly and the corresponding service information can be called up as required. The customer operates one or more automotive service and/or repair shops. In the course of his work, he needs access to the online portals of various vehicle manufacturers, in particular in order to make entries in the respective digital service manuals, to edit them, to delete them or to retrieve other manufacturer information on the online portal. Since registration, maintenance of access and execution of entries sometimes prove to be inconsistent, complicated and time-consuming, the customer is looking for a solution that is simpler for him. The provider provides efficient services related to digitization processes, information procurement and data processing in the automotive service and repair sector. For example, the provider has developed a service based on the “one-stop-shop principle” to make it easier for workshops to process service entries in digital service booklets and retrieve manufacturer information. The provider makes these services available exclusively to companies with a valid business license.
2. scope of application, communication and conclusion of contract
The following service agreement with the provider applies exclusively to customers who are entrepreneurs as defined by § 1 UGB. The Customer expressly agrees that all notifications, confirmations or declarations of the Provider – unless expressly provided otherwise – may also be effectively delivered to him via the e-mail address provided by him. By registering for a customer account, the customer agrees to these contractual provisions and declares his will to use services of the provider. The provider is not obliged to accept the registration. The provider will first confirm receipt of the registration by e-mail, check the content and only then confirm a possible conclusion of the contract. Deviating agreements, ancillary agreements, terms and conditions of purchase or general terms and conditions of customers shall not be accepted by the supplier as part of the contract unless the supplier has expressly agreed to their validity in writing in advance.
3. subject matter of the contract
3.1 Online portals already available
The Customer commissions and authorizes the Provider to perform the following services on behalf of the Customer on currently available online portals of various vehicle manufacturers in general (and specified in more detail if necessary):
(a) Registration of the customer on available portals
(b) Ongoing management of the user accounts there.
(c) Entries in digital service booklets (according to individual order)
(d) Information retrieval (repair manuals, service history, etc) (by individual order).
(e) Other activities necessary or customarily incidental to the foregoing.
A listing of the currently available online portals can be found under the keyword “Manufacturer overview” on the provider’s website.
3.2 Newly added online portals
The Provider shall inform the Customer in writing (by e-mail) if a new portal is added to the service offer. This information is necessary for the fulfillment of contractual or pre-contractual measures according to Art 6 para 1 lit b DSGVO. With the addition of a new manufacturer’s portal, the subject matter of the contract expands accordingly and the Provider creates (at no additional cost) a new portal access for the Customer, unless the Customer expressly objects to this within fourteen days of receipt of the written information about this. Provided that the customer does not wish to receive (further) information about newly added online portals, he/she may opt out of receiving this information by either (i) reject on the merits directly at the time of account registration/contract conclusion, or also its rejection (ii) declare by link in each individual information for the future.
3.3 Necessary Changes or Additions to the Service
The technical development of the Internet, legal regulations or requirements, but also the further development of own and third party products entitle the provider, if necessary, to make necessary changes or additions to the service to be provided by him. Point 5 applies. If the customer wishes to make changes or additions to a service, he must inform the provider of this. The Provider shall announce within a reasonable period of time whether the change or addition is possible and at what changed conditions. All addenda, amendments, supplements or additional agreements shall only become effective with the express written consent of the supplier.
4. prerequisite for the provision of the service
The Provider shall perform the Services according to the nature and scope of the information and documents provided by the Customer and shall rely on their integrity. The Customer therefore bindingly assures the Provider that
(a) all information has been accurately and properly submitted to the provider and is current;
(b) the Customer can grant the Provider a legally valid authorization for the commissioned data processing (item 11) and the Customer has in particular all necessary authorizations, releases and consents (e.g. from vehicle owners or employees) to perform the Services (also by the Provider);
(c) unauthorized persons have no access to the account data at the provider portal, which is ensured in particular by appropriate technical and organizational security measures;
(d) No other natural/legal persons have been, will be or have already been engaged to perform identical services (to avoid impermissible double entries);
(e) any existing access data of the Customer to (individual) online portals are issued to the Provider for uniform administration;
The provider is dependent on third parties, in particular on (information from the) customer, but also on different vehicle manufacturers for its service provision. The Provider shall not be liable for delays or deficiencies in service provision caused by third parties (e.g. missing or incorrect information; system errors of the online service portal, etc.). The provider assures the customer within its own sphere of influence:
(f) To perform all Services and related activities in a timely and diligent manner based on the instructions, information and documents provided by the Customer (and not reviewed by the Provider as to content);
(g) to promptly arrange for the registration of the customer in online portals pursuant to item 3 and to forward to the customer any data protection statements, terms of use or other general information of the online portals that are only accessible thereafter;
(h) perform individual information retrievals from online portals in accordance with item 3 in a timely manner;
(i) to continuously and promptly initiate or make available any necessary updates within its sphere of responsibility (cf. Section 7 in connection with Section 1 (3) VGG).
5. charge / charge and contract adjustment
The Provider shall be entitled to an appropriate fee for the provision of its services. Unless otherwise agreed in writing, the Provider shall be entitled to the fee currently published on the Provider’s website for the respective service provision (see Annex 1, as amended from time to time). All fees are to be understood as net fees excluding value added tax and other possible levies, expenses, costs, services or fees from third parties. The Provider is entitled to adjust its services, create new product models (e.g. subscription packages) and/or adjust charges from time to time. The customer must be notified of these changes in writing in advance. They shall come into force at the earliest if the customer does not object in writing within fourteen days of notification. If the customer objects to the adjustment in due form and time, the provider shall be entitled but not obliged to refrain from further service provision. If the Provider opts for extraordinary termination of the contract pursuant to item 9 (c), item 10 shall apply.
6. accounting
Invoices shall be issued in electronic form without exception and shall be sent to the e-mail address notified by the customer.
7. terms of payment / due date
Payment is made in advance by recharging the customer’s account, or immediately using one of the payment methods listed on the website. The current status of the customer account can be viewed at any time in the customer profile at www.oeservice.eu. A credit balance on the customer account is not transferable to third parties. While the service contract is in force, amounts charged to the customer’s account are non-refundable. A set-off with counterclaims of the customer is not possible, unless the counterclaim has been legally established or recognized by the provider. Point 10 applies to the refund of credit after the end of the contract.
8. warranty and liability
8.1 No permanent availability: According to the state of science and technology, it is not possible to exclude errors in products (in particular also software) under all application conditions. This also applies to downtime due to maintenance, software or security updates, technical problems of third parties, force majeure and circumstances beyond the control of the provider. The provider is therefore not liable for an uninterrupted or error-free use of products or portals. Unavailability for a longer period of time may entitle to termination according to clause 9 lit b of this contract. The customer declares not to claim any damages and/or warranty for failures.
8.2 Customer’s own responsibility for content/transmission: The Customer shall ensure at its own expense, responsibility and risk the correctness of the information transmitted, thevalidity of its authority to place the order and the functionality of the own infrastructure (software and hardware, etc.). The customer undertakes to pay all relevant legal provisions and technical/organizational protection measures when setting up and posting content in its user account and in particular to take appropriate measures to prevent that unauthorized third parties gain access to his user account. At this point we also refer to Item 11 referred. The customer shall bear the exclusive responsibility for the stored in his user account and transmitted from his user account to the provider. Contents. The provider assumes no liability for this. Any claims of the customer in this respect against the provider are excluded. The customer keeps the provider in the third parties resulting from incorrect information with regard to content (see also 8.7). and shall indemnify and hold harmless (see also 8.7).
8.3 Proof of defects and obligation to give notice of defects: A relevant defect shall only be deemed to exist if the Customer can prove that the Provider has provided a service in accordance with Section 3.1. (c) or (d) provided in clear contradiction to the instruction or information of the customer. The customer must notify the provider of the defect – in the event of any other loss of entitlement – in writing and with reasons within five working days of the service being provided. Relevant defects shall be remedied at the Provider’s discretion either (free of charge) by rectification or substitute provision of the Service. Price reduction is excluded. A right of withdrawal and right of recourse is excluded.
8.4 Limitation of liability: Insofar as this does not violate mandatory law, the Provider shall only be liable for compensation for damages caused in connection with this contract by it, its employees and/or vicarious agents in the event that such damages were caused by gross negligence or intent. Liability for gross negligence is limited in individual cases to the amount of the respective fee for the service. However, the accompanying limitations of liability do not apply to compensation for personal injury.
8.5 Exclusion of liability: The liability of the Provider for slight negligence as well as indirect or consequential damages – such as loss of profit, costs associated with business interruption, loss of data, financial losses or claims by third parties – is expressly excluded to the greatest extent possible, regardless of whether caused by the Provider, its employees and/or agents.
8.6 Disclaimer for account deletion after takeover period: see point 10.
8.7 The relevant provisions of the order processing agreement shall apply to liability and damage compensation issues in connection with data protection aspects.
8.8 Claims for damages shall become statute-barred in accordance with the statutory provisions, but no later than six months after knowledge of the damage and the damaging party. The injured party must prove the existence of gross negligence or intent.
9. term of contract / waiver of termination / notice period and termination date
This Agreement shall enter into force upon acceptance by the Provider and shall be concluded for an indefinite period of time. For a period of two years from the conclusion of this Agreement, the Customer declares its waiver of ordinary termination of the Agreement (“binding effect”), which takes into account the extensive administrative effort of the Provider for initial setup of the portal accesses. After expiry of the binding effect, the customer can terminate the contract annually on 31.12. subject to a 6-month notice period. by registered letter to the provider. The provider also has such a right of termination (without binding effect). With regard to the reimbursement of credit balances after termination of the contract, Section 10 shall apply. The contract may be terminated unilaterally at any time for good cause, immediately and without notice (“extraordinary termination of contract”). Important reasons are in particular if
(a) the opening of insolvency proceedings against the provider’s assets has been dismissed for lack of assets to cover costs;
(b) one party has notified the other party of a breach of a material provision of this Agreement and has given the other party at least 14 days’ notice to remedy the breach and the other party fails to remedy the breach within such notice;
(c) the Customer objects to a fee adjustment pursuant to item 5 in due time and the Provider declares to refrain from further provision of the service.
10. effects of the end of the contract
With the declaration of the end of the contract, the Provider shall send an instruction for account takeover to the Customer by registered letter so that the Customer can actively take over the respective accounts at online manufacturer portals within fourteen days (“Takeover Period”). For this purpose, the Provider shall – after appropriate identification – also transmit all necessary documents, information and passwords to the Customer. Upon (unused) expiration of the takeover period, the Provider is entitled and obligated to irrevocably delete the Customer’s account accesses or destroy passwords. The Customer declares to waive the assertion of claims against the Provider arising from or in connection with this deletion/destruction. In the event of termination of the contract pursuant to Section 9, the Provider shall refund any available customer credit by a suitable means within fourteen days of the declaration.
11. confidentiality and data protection / order processing contract
The contracting parties undertake to comply with all applicable data protection and confidentiality provisions, both for themselves and their employees. In particular, the contracting parties also undertake to maintain secrecy about all information that they exchange or come to know in connection with the service. This does not include the use and disclosure of information that is necessary for the performance of the service itself. The above obligations shall also apply after termination of this contractual relationship. The fulfillment of the service itself and thus the data processing required for the actual fulfillment of the contract shall beperformed by the Provider exclusively on behalf of and at the request of instruction of the customer as the person responsible under data protection law. The parties have agreed on the further specification a processing order in electronic form. which supplements this Service Agreement (cf. Art 28 (9) GDPR). The customer assures in particular to preserve and consider data subject rights and to have a legally valid authority to place orders with the provider. This includes, in particular, compliance with information and clarification obligations of the customers towards its workshop customers, vehicle owners/car owners or its employees, in particular also with regard to data forwarding and a possible property right deficit in the event of a possible third-country transfer or the possibly required Obtaining Consent. In all other respects, the provisions of the currently valid, general privacy policy of the Provider, which is published on its website: www.oeservice.eu
12. miscellaneous
Disputes arising out of or in connection with this contract shall be governed by the laws of the Republic of Austria, excluding its conflict of law rules and the provisions of the UN Convention on Contracts for the International Sale of Goods . Right to buy. For the resolution of all disputes arising from this contract, the exclusive jurisdiction of the courts having jurisdiction over the subject-matter at the place of business of the provider in Klagenfurt agreed. Deviating agreements, collateral agreements, supplements or additions to this contract must be in writing in order to be legally effective, as must the mutual agreement of the parties. Waiver of this formal requirement. Insofar as provisions of the order processing agreement pursuant to item 11 between the customer and the provider are in conflict with this contract, the provisions of the order processing contract shall take precedence. Should individual provisions of this contract be or become invalid or ineffective, the effectiveness and validity of other provisions shall not be affected thereby. For the If a provision is legally invalid, it shall be deemed to be replaced by a provision whose comes closest in terms of content to the legally valid condition.