General Terms and Conditions of Business
1. Scope of application
1.1 These General Terms and Conditions apply to all business relationships between BMF Media Information Technology GmbH, Peter-Dörfler-Straße 32, 86199 Augsburg (hereinafter referred to as “BMF”) and its commercial or self-employed customers within the meaning of § 14 German Civil Code (BGB) (hereinafter referred to as “Customer/s”). General terms and conditions of the Customer shall not become part of the contract, even if BMF does not expressly object to them.
1.2 The version of BMF’s General Terms and Conditions valid at the time the respective contract is concluded shall apply.
1.3 Individual agreements shall take precedence over these General Terms and Conditions.
2. Conclusion of contract
2.1 BMF’s offers are subject to change and non-binding. The placement of an order by the Customer constitutes an offer to BMF to conclude a contract. A contract is only concluded upon confirmation of the order by BMF.
2.2 Pre-contractual notifications by BMF, in particular technical changes in relation to the services of BMF due to technical progress or other developments, shall remain reserved within reasonable limits. Fact sheets & leaflets etc. are purely informative and do not become part of the contract.
2.3 BMF is entitled to make use of third parties to fulfill the contract.
3. Services
3.1 BMF provides services in accordance with the respective individual contractual agreements with the respective Customer.
3.2 Unless otherwise agreed, BMF shall provide the Customer with temporary software programs, software applications, access to relevant databases of BMF by means of the corresponding access software (hereinafter jointly referred to as “Software”) for the term of the contract together with the granting of the rights required for their contractual use in accordance with section 7. If agreed individually, BMF shall provide the Customer with storage space on BMF’s own computers or place the Customer’s computers in external data centers. BMF then offers the Customer the opportunity to access the data stored on the computers via the Internet. BMF does not provide any services as an access provider. In this respect, additional costs may be incurred by the Customer. In addition, BMF offers further services, e.g. the registration of Internet domains, mail traffic, etc. The details of the respective services can be found in the individual agreements, the product and service description and the price list for the individual products and services. Accessibility and performance values promised by BMF are regulated by the service level agreements valid for the respective service.
3.3 BMF reserves the right, to the extent reasonable for the Customer, to change or expand its service to the extent necessary to improve the services and/or if this is made possible and/or required by technical developments.
3.4 If services are provided by BMF free of charge, they can be discontinued at any time without giving reasons if these services are not expressly part of the contract with the Customer for which remuneration is payable. If a mail system is offered to the Customer and the Customer uses it, BMF shall store the data for a maximum of the legally prescribed period.
3.5 Support services beyond the warranty shall not be provided unless a written agreement has been reached on the type and scope of the support and the costs. Otherwise, the standard support agreement of BMF, which is attached to these general terms and conditions, shall apply. If the Customer makes use of support services of BMF, BMF shall be entitled to reasonable remuneration for the respective support services.
3.6 Unless expressly agreed with the Customer, delivery dates are not binding dates. That means those dates are not considered as so called „Fixgeschäfte“ under German law.
3.7 The Software is generally made available 24 hours a day with the exception of necessary maintenance work and/or other downtimes. The details are stipulated in the attached standard support agreement of BMF. The Customer shall ensure that its website(s) and any mobile applications are also accessible within the respective maintenance window without any restrictions and that the BMF integration(s) to be maintained do not otherwise interrupt the accessibility of the respective website(s).
4. Obligations of the Customer to cooperate
4.1 The Customer shall provide BMF with all cooperative services required for the performance of the agreed services, in particular all information, documents and data, in time and in complete manner. If the Customer does not fulfill his obligations to cooperate in time or not completely, BMF shall not be in default due to any resulting delays. Any agreed delivery dates shall be postponed accordingly to a reasonable extent.
4.2 The Customer shall ensure compliance with the minimum technical requirements of BMF, which are listed in more detail in the offer of BMF. If the Customer provides its own hardware to BMF (“server housing”), the Customer shall be responsible for the operation and maintenance of its hardware. The Customer expressly assures that he is the owner of the hardware provided. The Customer shall notify BMF in writing of any third-party rights to the hardware in the case of leasing and financing agreements, for example, upon conclusion of the contract, enclosing meaningful documents. The Customer shall grant BMF a contractual right of lien on his hardware provided to BMF to secure all claims.
4.3 The Customer shall not relet or sublet rented web space (web hosting). This also applies if the service is provided free of charge by BMF.
4.4 In the case of ROOT servers, the Customer has administrator rights; appropriate in-depth knowledge of server administration and ongoing training are guaranteed by the Customer. The Customer is solely responsible for the security of his server. The installation of maintenance programs or other programs that BMF may provide or recommend does not release the Customer from this obligation. The Customer is obliged to set up and manage his server in such a way that the security, integrity and availability of the networks, other servers, software and data of third parties are not jeopardized.
4.5 For a Managed Server Service (initial setup of the server/monitoring), BMF is entitled to install update service programs, firewall and traffic monitoring tools on the server.
4.6 The Customer shall not violate statutory provisions or third-party rights when using the Software and/or the server and shall indemnify BMF against all third-party claims directed against BMF that are based on the unlawful use of the Software and/or server. In particular, pornographic content and content of a right-wing extremist or national-socialist nature as well as websites whose content is contrary to public decency are not permitted.
4.7 The Customer shall take appropriate precautions (e.g. data backup) in the event that BMF’s Software fails or servers provided by BMF are not accessible. It is the sole responsibility of the Customer to back up the storage contents of its website and databases used at regular intervals on external storage media. The Customer is aware that there can be no final data security for computers connected to the Internet (server and clients), including e-mail operation, despite appropriate security precautions.
5. Remuneration, offsetting
5.1 All prices do not include the applicable statutory value added tax. Unless otherwise agreed with the Customer, invoices from BMF are due for payment without deduction upon receipt by the Customer. Unless otherwise agreed, any agreed monthly payments are due for the first time on the first day of the month after the initial setup has been successfully completed at the Customer and the Customer has received the corresponding application link. If the Customer does not fulfill his obligations to cooperate within the scope of the initial setup or does not do so properly, so that the completion of the initial setup is delayed, BMF reserves the right to invoice the Customer for services already rendered despite the fact that the initial setup has not been completed. Furthermore, the due date of the monthly remuneration shall occur irrespective of whether the Customer has already started operating the web store planned by him.
5.2 If the Customer causes additional expenses on the part of BMF, these shall be invoiced separately. In the event of such requests, BMF shall inform the Customer of the approximate additional costs to be expected – if foreseeable – before providing the service.
5.3 If the Customer uses a payment service provider for the settlement of BMF invoices and this provider does not enable BMF to transmit the invoice on the first attempt, the Customer shall be obliged, at BMF’s request, to enable the intended invoice transmission within three working days or to inform BMF of an alternative method of settlement within the aforementioned period.
5.4 If the Customer defaults on payment, BMF shall be entitled, in addition to the statutory rights, to claim a lump-sum compensation of € 5 for each overdue notice, whereby the Customer shall be permitted to prove that no damage was incurred or that the damage was significantly lower than this lump sum. If the contract is not concluded on the first day of a calendar month, the tariff to be paid for the first month shall be calculated pro rata according to the remaining days of the month, starting on the day following the provision of the Software or receipt of the service ordered by the Customer. The agreed fee is based on the product and/or service ordered by the Customer (web hosting or server package, etc.). The time of the order in accordance with the service description and price list is decisive for the amount of the fee. One-off fees and regular monthly, quarterly or annual fees are payable in advance. In the event of a delay in payment of more than 2 weeks and/or a repeated delay in payment, BMF reserves the right to temporarily suspend the contractually agreed services to the Customer and its customers or companies affiliated with the Customer, i.e. until the outstanding fees have been paid, and to provide further services exclusively against advance payment. This also includes BMF’s right to withdraw the Customer’s authorization to continue using the data already transmitted by BMF, access to configurators, etc.
5.5 The Customer shall bear the costs of failed bank transactions with the Customer or the Customer’s bank for which the Customer or the Customer’s bank is responsible (in particular, but not limited to, any fees for charge backs).
5.6 Offsetting with counterclaims of the Customer against BMF is only permitted if the claims have been legally established or are undisputed by BMF. Any warranty claims shall remain unaffected by this.
5.7 The assignment of claims against BMF is excluded. § 354a German Commercial Code (HGB) remains unaffected by this.
6. Warranty
6.1 During the term of the contract, BMF warrants that the contractually agreed quality of the Software is maintained and that no rights of third parties conflict with the contractual use of the Software. BMF shall rectify any material defects („Sachmangel“) and defects of title („Rechtsmangel“) in the Software within a reasonable period of time in such a way that it is oriented towards the interests of all software users. Rectification shall not be considered if the defect only insignificantly restricts the use of the Software. The warranty for material defects shall not apply to defects that are based on the fact that the Software is used in a hardware and/or software environment that does not meet the requirements specified in the minimum technical requirements of BMF or for changes and modifications that the Customer has made to the Software without being authorized to do so by law, this contract or on the basis of a prior written consent of BMF.
6.2 BMF assumes no warranty or liability for the correctness of the transmitted tire and rim data. Before initiating a tire or rim purchase by one of its customers, it is the Customer’s responsibility to check once again, using the German-language test reports provided by BMF, whether the wheel type in question is actually compatible with the customer’s vehicle.
6.3 BMF shall provide the warranty by subsequent fulfillment, at its own discretion either by rectification of defects or by defect-free replacement delivery. As part of the replacement delivery, the Customer may be provided with a new version of the Software, unless this leads to unreasonable impairments. BMF is entitled to provide the warranty on the Customer’s premises. BMF also fulfills its obligation to rectify defects by either updating the Software on its servers and informing the Customer about the update or by providing updates with an automatic installation routine on its homepage for download by the Customer and offering the Customer telephone support to solve any installation problems that may occur. BMF may also rectify defects by showing the Customer ways to avoid the effects of a defect without detrimentally affecting the owed functionality. The Customer must accept new programs or data provided to him in the course of subsequent fulfillment even if this leads to an adjustment or conversion effort, if and to the extent that the corresponding effort of the Customer is within reasonable limits.
6.4 The Customer is not entitled to claim a rent reduction by independently deducting the reduction amount from the current rent. This does not affect the Customer’s right under the law of unjust enrichment to reclaim the excess rent paid due to a justified reduction.
6.5 The Customer’s warranty rights shall expire if the Customer or a third party makes changes to the contractual Software, system software, hardware or other contractual elements and additional equipment without BMF’s consent and without the Customer having previously set BMF a reasonable deadline for subsequent fulfillment.
6.6 The Customer must check the Software for obvious defects immediately upon receipt and, if they exist, notify BMF of them without delay. Otherwise, any warranty for these defects shall be excluded. Furthermore, the Customer is obliged to notify BMF in writing of any defects in the Software that occur at a later point in time immediately after their discovery. In the case of material defects, this shall be done by describing the time of occurrence of the defects and the detailed circumstances.
6.7 If the subsequent fulfillment fails, the Customer may, at his discretion, demand a reduction in the remuneration or withdraw from the contract. The Customer may only claim damages for defects under the statutory conditions and only to the extent that BMF’s liability is justified in accordance with section 9. Other claims for defects are excluded.
6.8 BMF shall be entitled to charge the time and effort required to remedy the defect in accordance with BMF’s applicable hourly rates if an examination of a defect reveals that it is excluded from the warranty.
7. Granting of rights
7.1 All rights to the Software provided or made available to the Customer by BMF shall be the exclusive property of BMF, unless expressly agreed otherwise between the parties.
7.2 The type and scope of the Customer’s rights of use are determined by the respective individual agreements made with the Customer. Unless otherwise agreed, the Customer shall receive the non-exclusive, non-transferable and non-sublicensable right to use the Software for the agreed contractual purpose, limited to the term of the respective contract. The contractual use includes loading the Software into the working memory, displaying and running the Software. Offline installation or additional links are not included in the scope of services. Furthermore, the Software is not transferred to the Customer. If and insofar as this is necessary for the contractual use of the Software, the Customer is entitled to reproduce Software supplied to him by BMF. In particular, the loading of the Software into the working memory is to be regarded as reproduction required for the contractual use. In addition, the Customer is generally entitled to make a copy of the Software supplied to him by BMF for backup purposes (“Backup Copy”). The lessee is obliged to mark this Backup Copy as such and to affix a copyright notice of the manufacturer. However, if the Software is made available to the Customer by download, the creation of such a Backup Copy is not permitted if and to the extent that it is possible to download the Software again from the BMF server. Apart from that, the Customer shall not be entitled to make copies, unless otherwise provided by law.
7.3 The Customer is not entitled to edit, further develop or otherwise modify the Software. § 69e German Copyright Act (UrhG) remains unaffected in this respect.
7.4 If BMF makes new versions, updates, upgrades, patches or other new deliveries with regard to the Software (collectively “Updates”) during the term, the above rights shall also apply to these.
7.5 The Customer shall not be entitled to any rights that are not expressly granted to the Customer on the basis of this section 7. In particular, the Customer is not entitled to use the Software beyond the agreed use or to have it used by third parties or to make it accessible to third parties. In particular, it is also not permitted to reproduce or sell the Software or to transfer it to third parties for a limited period of time (e.g. to rent or lend it). Nor is the Customer entitled to transfer image files generated with the help of the Software or BMF configurators/databases integrated in this respect (in particular vehicle images) to third parties without the prior express consent of BMF or to grant these third parties permission to obtain the said image files from the Customer in order to subsequently use them for their own commercial purposes. For individual components of the Software, direct access for configurations may be realized with the help of so-called “hash codes”. Unless otherwise agreed, “hash codes” shall be kept for Customers for a maximum of four (4) weeks.
8. Audit
8.1 Upon BMF’s request, the Customer shall enable BMF to check the proper use of the Software, in particular whether the Customer uses the Software qualitatively and quantitatively within the scope of the licenses acquired by him. For this purpose, the Customer shall provide BMF with information, grant access to relevant documents and records and enable an inspection of the hardware and software environment used by BMF or by third parties bound to secrecy. The inspection must be announced in writing two (2) weeks in advance (except in justified urgent cases).
8.2 BMF may carry out the inspection on the Customer’s premises during the Customer’s regular business hours or have it carried out by third parties bound to secrecy. BMF shall ensure that the Customer’s business operations are disturbed as little as possible by these activities on site. The Customer shall provide BMF with the information required to clarify the actual volume of use and shall allow BMF and the third parties engaged by BMF in this respect, who are bound to secrecy, to carry out appropriate testing procedures.
8.3 If the audit reveals that the purchased license has been exceeded by more than 5% (five percent) (measured on the basis of a comparison between the remuneration actually paid by the Customer during the audit period and the remuneration that the Customer should have paid for the use actually made by the Customer during the audit period) or that the Customer has otherwise used the license in a manner not in accordance with the contract, the Customer shall bear the costs of the audit, otherwise BMF shall bear the costs of the audit. All other rights of BMF due to exceeding the contractually acquired licenses remain reserved.
8.4 Should the audit be carried out by a third party appointed by BMF and bound to secrecy in this respect and should this third party determine during its audit that the Customer has exceeded the scope of use, this third party shall give its draft of the audit report to the Customer in advance and declare to the Customer that it will not submit its audit report to BMF before the expiry of one month and will waive the submission altogether if the Customer makes a corresponding extension of the license volume by then with immediate effect. If the Customer does this in good time and proves this to the auditor, the auditor will only state in the audit report that the Customer is not currently exceeding the scope of use.
9. Limitation of liability
9.1 BMF shall owe the Customer damages on a non-contractual and contractual basis only to the following extent:
- in the event of intent, gross negligence or lack of a guaranteed quality or durability in full;
- in other cases only in the event of a breach of an obligation that is essential for achieving the purpose of the contract („Kardinalpflicht“), limited to compensation for foreseeable and typical damage.
9.2 BMF’s liability for personal injury and liability under the Product Liability Act shall remain unaffected.
9.3 There is no liability regardless of culpability for initial defects in accordance with § 536a (1) BGB.
9.4 In the event of data loss, BMF’s obligation to pay compensation shall be limited to the amount of the costs that would have been incurred if the Customer had regularly backed up the data in order to restore it.
9.5 The above limitations of liability in favor of BMF shall also apply to subcontractors or other third parties engaged by BMF in the course of the performance of the contract as well as to executive bodies, employees, fulfillment agents („Erfüllungsgehilfen“) and vicarious agents („Verrichtungsgehilfen“) of BMF.
10. Security measures and confidentiality
10.1 The Customer is obliged to take appropriate measures to ensure that unauthorized third parties cannot access the Software, the Backup Copy, the documentation and other accompanying materials supplied. In particular, the Customer is obliged to store the original data carrier, all existing copies of the Software including the Backup Copy and all associated documentation in a place protected against unauthorized access by third parties. The Customer shall bear the costs of storage.
10.2 The confidentiality obligation with regard to business secrets and other confidential information of the parties shall be governed by the confidentiality agreement (NDA) concluded separately between the parties. In addition, the provisions of the German Trade Secrets Act (GeschGehG) shall apply in particular.
11. Data protection
The parties shall comply with the applicable data protection provisions. If necessary, the parties shall conclude an order processing agreement (see Art. 28 (3) GDPR).
12. Domain allocation and rights to domains
12.1 When procuring and/or maintaining Internet domains, BMF acts merely as an intermediary, i.e. in this context, only the Customer is authorized and obligated.
12.2 The respective registration regulations of the responsible registry apply, in particular BMF has no influence on the availability of the domain allocation, nor on domain availability queries. Accordingly, no guarantee is given for the availability, freedom from defects of title, etc. of the respective domain.
12.3 The IP addresses or subdomains provided will be changed by BMF if necessary. The Customer will generally be notified of a change one week before the changeover.
13. Term and termination
13.1 The contractual relationship begins with the signing of the contract, transmission of the order placement signed by the Customer or order confirmation by BMF and ends with the expiry of the contractually agreed term. The contractual relationship shall be extended by a further year in each case unless it is terminated in writing by one of the parties no later than three months before the end of the contract term or the relevant extension.
13.2 The contractual relationship may also be terminated in writing by either party at any time for good cause without notice. Good cause shall be deemed to exist in particular if one of the parties breaches material obligations under the contract to a serious extent (for example, if the Customer exceeds the rights of use granted to it under this contract for the Software provided) and does not remedy this within a reasonable period of time following a written request from BMF and/or if the corresponding obligations are repeatedly breached.
13.3 The provisions of § 543 BGB remain unaffected by this.
14. Return and deletion
14.1 After termination of the contractual relationship, the Customer is obliged to stop using the Software and – if and to the extent available to the Customer – to return the Software and all program copies (including the Backup Copy) as well as all documentation, materials and other corresponding documents provided to BMF or to delete them permanently and verifiably. Depending on the scope of the contractual relationship, the Customer’s obligation to return also includes the obligation to permanently delete BMF’s databases at the Customer’s premises, should BMF have made these databases available to the Customer by way of exception. The return shall be at the Customer’s own expense.
14.2 If BMF has made the Software available to the Customer via download, BMF is free to waive the return in accordance with subsection 14.1 and instead demand the deletion of the Software and other program copies and the destruction of the provided documentation, materials and other corresponding documents from the Customer.
14.3 In addition, the Customer is obliged to completely and permanently delete all existing installed copies of the Software and any stored documentation from all its servers. Rights of retention are excluded in this respect.
14.4 Any use of the Software after expiration or termination of the contractual relationship is not permitted.
15. Final provisions
15.1 The contractual relationship between the Customer and BMF shall be governed exclusively by the laws of the Federal Republic of Germany with the exception of its conflict of laws provisions under private international law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
15.2 The place of performance for liabilities arising from the contractual relationships between the Customer and BMF is Augsburg, Germany. If the Customer is a businessman within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of BMF in Augsburg, Germany. The same applies if the Customer is an entrepreneur within the meaning of § 14 BGB. However, BMF is also entitled in all cases to bring an action at the Customer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.
15.3 Amendments and additions to the contract must be made in writing. This also applies to the amendment or revocation of this section. Electronic documents in text form do not fulfil the written form requirement.
Annex: BMF Standard Support Agreement