General Terms & Conditions of MECOMO AG (Effective by 1.8.2014) These Terms apply to all services, online services and products of MECOMO AG if not specified in writing otherwise.
1. Scope of Validity
1.1. The following terms and conditions (hereinafter Terms and Conditions) are the legal basis for the relationships between contracting partner (the “CP”) and MECOMO AG (MECOMO). Our terms and conditions are part of all transactions with CP. Other terms and conditions, particularly purchase conditions of buyers are not recognized by us – even without a written objection. By ordering one of our offers with accompanying terms and conditions or by clicking the “Yes – I accept the Terms” (or, mutatis mutandis, the same formulation) for online services, CP accepts the terms and conditions and makes them the subject of the agreement. In addition to the general terms and conditions apply, so far as is otherwise provided, the legal regulations of the Federal Republic of Germany.
1.2. MECOMO AG, Max-Planck-Str. 8, D-85716 Unterschleissheim, Germany (hereinafter MECOMO) is a system for tracking and telematics solutions. Purpose of our services include HW-/SWintegration, collection, compilation, processing and utilization of data, preparation of data and databases (e.g. multimedia content) for the Internet and other media (especially the retrieval using mobile telecommunication devices), provision of computer programs as well as online applications (the “Services”) and telematics hardware for use by private and corporate customers. Data, databases, programs, value-added services and telematics hardware are made available for payment. This includes the commercial license rights with their own or related third-party data and databases of all kinds, the sale and transfer of computer programs for payment and value-added services and the provision for payment of the services associated therewith. The CP intends to use MECOMO of data, solutions, services and products (hereinafter SERVICES). The CP issued an order to MECOMO to implement the provision and operation of the technical means of SERVICES by MECOMO personnel, infrastructure and developments. The use of SERVICES offered on behalf of MECOMO is subject to the following conditions. The use of all internet services on domain ‘mecomo.com’ and are also subject to the following conditions. Data and Internet applications that are not offered on behalf of MECOMO shall be governed by the terms and conditions of their respective suppliers.
1.3. MECOMO may change these terms, order forms, tariffs, terms of reference, national guidelines and service requirements as well as service descriptions at any time by notifying the changes to CP in writing. If CP does not object in writing to any or all changes within four weeks since receipt of notification then the notified changes shall be deemed approved.
2. MECOMO Duties
2.1. MECOMO operates its technical infrastructure 365 days a year, 24 hours a day, with a minimum availability of 97.5% on annual average. Excluded are disruptions for maintenance and technical problems that lie outside the sphere of influence of MECOMO (e.g. disruptions in the Internet service providers, mobile network operators etc.).
2.2. In dependence of the type of SERVICE, MECOMO provides a support hotline which CP might call in case of issues.
2.3. MECOMO will undertake maintenance and other necessary technical modifications to its infrastructure without compromising service availability as few as possible. If a SERVICE limitation due to carried out maintenance works is inevitable, MECOMO will inform CP usually with a lead time of one week.
2.4. It is the company’s aim to provide data, databases, programs, products and other SERVICES in utmost functionality, accuracy and timeliness. Therefore, advanced technologies, reliable partner companies, elaborate control systems and motivated employees are employed. MECOMO is not liable for functionality of products and SERVICES, completeness and timeliness of the data sets provided third party providers due to multiple technical interdependencies (e.g. to other partners such as network operators) as well as the fluctuation and variation within the data sets. Despite constant checks and quality controls we might not guarantee accuracy, timeliness or scope of databases and other SERVICES where third party companies are involved.
3. CP Duties
3.1. If CP used a tracking solution by MECOMO then CP confirms that any person will be tracked against their will resp. knowledge. Persons who are to be tracked (regardless of actual tracking technology) by a MECOMO service must have declared their consent to CP before the first location is retrieved. This also applies if a person used an object that is trackable and by this the person himself might become trackable (e.g. vehicle tracking). For the avoidance of doubt, the person’s consent should be provable by CP on request by MECOMO. Is CP is a company and might want to track employees then it is necessary to obtain the consent of the relevant staff bodies (e.g. employee councils). Tracking of people against their will is against the law and is punishable by law.
3.2. CP agrees that tracking data of objects and persons on an anonymous basis (i.e. without any specific reference to persons or objects) that has been received and processed by MECOMO’s technical systems is owned by MECOMO and might be marketed to third parties by MECOMO.
3.3. If CP marketed MECOMO’s SERVICES under its own name then the full commercial operation of services and content responsibility has to be carried exclusively by CP. MECOMO only provides services by information and telecommunications technology.
3.4. In dependence of the services used, CP has a duty to cooperate and support MECOMO in order to enable setup and operation of desired MECOMO services. In particular, CP is obliged to provide required parameters for connection of its systems. Depending on the desired SERVICES an interface description according to specifications of MECOMO has to be provided by CP to MECOMO in advance. If CP failed despite request by MECOMO, MECOMO is entitled to begin to invoice this service and any external charges even before technical service becomes available.
3.5. CP declares that by using MECOMO’s SERVICES any laws and/or third-party rights (in particular copyright, trademarks, trademark, patent, publicity or other proprietary rights of third parties) are infringed. CP also confirms that it will not publish any violent, pornographic, racist, discriminatory or in any other manner legally impermissible content. If CP is not the end user but reseller or service provider then CP guarantees that it owns all licenses, authorizations, permits and licenses required for the operation of its services. CP is obliged to prove this to MECOMO upon request.
3.6. CP will provide all information against MECOMO truthful. Targeted false information, especially banking information from third parties that had not given power of attorney to CP will be prosecuted and are punishable.
3.7. CP needs to ensure that use of the SERVICES by third parties without written permission of MECOMO is excluded. CP passwords and user accounts which were provided by MECOMO have to be kept with great care. CP acknowledges that any use of his account(s) is correct after authentication by its user access has been correctly attributed to CP.
3.8. National guidelines (country by country) define the conditions for the provision of tracking solutions – particularly with regards to the consent of people to be tracked. It is mandatory that CP follows the national guidelines. CP warrants to immediately implement changes of national policies that affect the way of tracking or form of individual consent for tracking. A change in the rules may require change of practice, in particular on a change of applicable laws/regulations or decisions of the German Federal Network Agency as well as a change of closed contracts between MECOMO and mobile network operators.
3.9. Following the announcement of changes in tracking-related law, CP warrants to immediately implement changes in its tracking services based on MECOMO’s SERVICES (if they are in-house developments) in order to fulfill all legal requirements in all nations in which CP markets the SERVICES.
4. Terms of Payment
4.1. Our invoices are – unless otherwise confirmed by us in writing – for corporate customers, net and payable within 10 days after receipt of payment plus legally required value added tax (VAT). For private customers our invoices are immediately due for payment. The first three orders of new customers (corporate and consumers) have to be paid in advance.
4.2. If we subsequently reckognize that CP did conceal from us at time of order discernible adverse conditions which increase the probability that CP might not fulfill its contract then we are entitled, without prior notice, to cancel the contract and demand immediate payment for already performed services. 4.3. CP might only set-off counterclaim or withhold payments CP to the extent that his claim is undisputed by MECOMO and legally binding. Goods delivered by MECOMO to CP remain MECOMO property until full payment has been performed by CP.
5. Contract, Termination Online Services
5.1. Prerequisite for the use of MECOMO online services is proper user registration (“Registration”) in the service. CP confirms to provide the required information completely and correctly.
5.2. Registration data will be checked by MECOMO. Fake registrations are not permitted. MECOMO reserves the right to refuse registration of CP without giving reasons. Following the acknowledgement of registration CP receives a confirmation as well as user access data (“login”) by email and/or SMS.
5.3. In case of personal data change of the CP, CP will update its registered personal data in MECOMO’s online services in short term. For the provision of proper service by MECOMO is only possible based on correct and completed user registration.
5.4. CP will ensure that SERVICES are used only by persons who are directly registered – it is not allowed that non-registered people use MECOMO’s SERVICES. CP is liable for consequences, if any person or third party improperly used MECOMO’s online services with CP’s user login in negligent and culpable conduct. 5.5. CP owns the right, if not being a company or a full merchant, to cancel his service order within 14 days of registration which has been closed over the internet. The revocation must be by courier letter or by confirmed e-mail to MECOMO.
5.6. CP chooses a password and which might be changed at any time during the use of SERVICES. CP is responsible for maintaining the password confidentiality. 5.7. Unless otherwise agreed, minimum usage period for SERVICES (e.g. mecFLEET tracking platform) is 24 months, especially if telematics unit including a SIM-card is part of SERVICES. Usage period is extended for another 12 months, if not cancelled 3 months in writing before end of period.
5.8. For technical reasons, the termination of MECOMO’s SERVICES must be performed by CP. In CP’s user profile, CP needs to select “cancel service”. When executing the termination of user access, possibly existing positive account balance as well as other assets in the service are lost and are non-refundable. A notice is not complied with. The cancellation will be confirmed by email. Upon termination, no deductions will be made, of course – the bank issued debit authorization is immediately invalidated. If termination of user access shall be performed manually by MECOMO, an administration fee of at least € 20, – EUR has to be paid in advance to MECOMO. 5.9. An automatic restoration of user access after termination is not possible for MECOMO’s SERVICES. Manual restoration by MECOMO might be an option. However, CP might register with a new user account at any time. 5.10. The contract between CP and MECOMO can be terminated for relevant cause without notice. For MECOMO is an important reason in particular one of the following issues: 1. Suspected or proven SERVICES abuse; 2. Interference or damage of SERVICES by CP; 3. Serious breach of contractual obligations.
6. Delivery Dates of Products
6.1. Agreed delivery dates for products shall be deemed approximate delivery dates. Fixed dates are only recognized by MECOMO if they have been expressly confirmed in writing.
6.2. A culpably exceeded delivery time delay occurs only through a written reminder of CP. In case of delay, CP is entitled to cancel the order after setting a reasonable grace period in writing. In any case, damage claims are excluded.
7. Warranty and Liability
7.1. In cases of incomplete or incorrect delivery by MECOMO, as long as it were apparent defects, CP is required to report to MECOMO no later than 14 days after delivery. If CP were a company, deficiencies that might be discovered by reasonable inspection need to be reported latestly ten days after reception – in case of hidden defects immediately after discovery. A delayed use of supplied products/content does not relieve CP’s obligation of reasonable examination of our supplies at their reception. It should be noted that software can never be completely free of errors, so functionality of SERVICES and interoperability resp. usability with user’s own software is not guaranteed.
7.2. In case of justified and timely warranty complaints we have our choice to repair the product or to provide a replacement. CP may demand a price reduction and rescission of the contract if two repairs resp. replacements failed and products/SERVICES are still flawed or the repair is not performed within a reasonable time. The liability for confirmed features remains unaffected.
7.3. Damage compensation to CP, for whatever legal reason, especially delay, impossibility of negligence of contract, breach of contract and tort are excluded in cases of ordinary negligence, with the exception of intended violation of key parts of contract. In case of slightly negligent breach of contractual obligations whose fulfillment is essential for achieving the purpose of the contract, we shall be liable for personal injury to a maximum of 5 Mio EUR, for property damage and financial losses only to the extent, as was to be expected with its entry in the contract normally, in any case limited to 1,5 Mio EUR. The liability for consequential damages based on breach of contract is excluded, provided that neither intent nor gross negligence are present. In business transactions with companies, the aforementioned liability limitations also apply to cases of gross negligence.
8. Scope of Tracking Services
8.1. Location-based or tracking online services by mecTRACE Suite, allow tracking of objects and people. For each person-related location determination, the consent of this person is required. mecTRACE Suite explicitly points out that tracking of persons without their knowledge or against their will constitutes a serious legal violation and CP bears full legal responsibility.
8.2. Certain value-added features of SERVICES (e.g. SMS-chat with other participants) are chargeable on actual use. 8.3. MECOMO is not required to maintain the service offering of online services at any time and permanent. CP is entitled to immediate termination of the contract, in the case of permanent suspension of SERVICES by MECOMO. A technically induced interruption of SERVICES is not to be regarded as a permanent suspension of SERVICES. In the case of permanent interruption MECOMO will notify CP by email, SMS or website.
9. Invoicing of SERVICES
9.1. If not agreed otherwise in writing, cost and scope of SERVICES shall be governed by the publication of currently valid price list by MECOMO. MECOMO reserves the right to change price and/or performance on the following base: new price list is announced to CP at least one month prior to its date of validity by email. An official new price list replaces all existing older price lists. In the event of a price increase, CP owns the right to extraordinarily terminate its contract with MECOMO at the date when the new price list becomes valid. By continuing to use of MECOMO’s SERVICES, CP accepts changed conditions.
9.2. Prepaid services cannot be changed in price by MECOMO.
9.3. Communication with CP resp. CP’s products/services via SMS (e.g. to enable or disable the transmission of contacts, manual localization, device configuration etc.) as well as each cell-ID tracking on behalf of CP, occurred costs need to paid by CP.
9.4. If not agreed otherwise in writing, invoices for SERVICES are provided either monthly or for the paid performance period as online invoice (Web) or PDF (by email). Invoices are sent as PDF by mail to a confirmed contact at CP. In case of absence of error messages with regards to email reception by agreed contact, CP waives any objection to the extent that the invoice had not been received by him. 9.5. CP has the right to dispute the charges billed within one month from the date of invoice. MECOMO invoices specifically mention this right. In case that CP does not make use of his right to challenge the invoice within the period specified, the invoice shall be deemed approved. The deadline is met by CP if the complaint is received by MECOMO within the period specified in writing or by email.
10.1. SERVICES of mecTRACE Suite require the processing of personal data. CP agrees with the collection, processing and utilization of personal data incurred by the use of the SERVICES needed for its implementation. CP agrees that his personal data will be stored and processed electronically by MECOMO. MECOMO is entitled to provide personal data to third parties, as long as it is necessary to provide SERVICES for CP.
10.3. CP is entitled at any time and free of charge to send a written request to MECOMO in order learn about which CP-related personal data has been stored by MECOMO. Information shall be provided electronically by MECOMO.
11.1. All MECOMO SERVICES and all information created by MECOMO are covered by copyright protection in accordance with §§4, 87a ff German copyright law („Urheberrechtsgesetz“), they may be used only to the extent agreed in writing with MECOMO. Any violation will be legally prosecuted. 11.2. Reproduction of our SERVICES are only permitted with our explicit written consent, unless they are permitted by law.
12. Shipping Business-relevant and Solution-related Information via Email
12.1. By providing the email address, CP agrees that information relevant for the business relationship as well as solution-oriented information might be sent by email. News on products and SERVICES are relevant business information.
12.2. CP email address will not given by MECOMO to third parties for advertising purposes.
12.3. Upon termination of the business relationship, the email address is no longer used by MECOMO for the information described in this point. For information on products and SERVICES the email address might be used by MECOMO until CP prohibits reception of such information from MECOMO via simple email to the email address SPOC@mecomo.com.
13. Applicable law and Jurisdiction
Is CP a private client or a company resp. corporation then Munich is agreed as place of jurisdiction. The legal relationship between CP and MECOMO is based and will be ruled by German law. The International Law for Sale of Goods EKG shall not apply. 14. Location of Service Location for all SERVICES is Unterschleissheim. MECOMO AG, Max-Planck-Str. 8, D-85716 Unterschleissheim, tel: +49 (89) 37 40 85-0 fax, +49 (89) 37 40 85-45 web,: https://www.mecomo.com ; CEO: Stefan Heimerl, Board: Bernd Müller (Chairman), Daniel Hutten, Carsten Ahrens Bank: Sparkasse Landshut, BLZ 74350000, Account number 709 009 / Raiffeisenbank Altdorf-Erding, BLZ 74362663, Account No. 64491, VAT ID: DE813083830, HRB 134621