The following general Terms and Conditions (the “GTC”) apply to all contracts concluded between You (the “Customer”) and up2parts GmbH, (registered number HRB 5103, Amtsgericht Weiden i. d. OPf.) whose registered office is at Dr.-Müller Straße 26 92637 Weiden i. d. OPf., Germany (the “Provider”);
By clicking the Subscription Button, you agree to all of these terms
1. DEFINITIONS AND INTERPRETATION
In these GTC:
1.1 the following words and expressions have the following meanings unless the context otherwise requires:
| “EULA” | the END USER LICENCE AGREEMENT which is made available to the Customer and/or users and can be accessed here: https://www.up2parts.com/en/eula |
| “License Fee” | means the Fees payable by Customer as set out in the ordering process on the website, invoices or price list. |
| “SaaS Service” | the Service of providing the Software over the internet through a browser without the necessity of installing it locally. |
| “Software” | the Software based on UP2PARTS CLOUDas further specified in the Documentation and any Software Update made available to the Customer by the Provider from time to time under these GTC. |
| “Subscription” | a rental agreement regarding the rental of the Software. |
| “Subscription Date” | the day of the confirmation of the order. |
| “Subscription Button” | the button in the ordering process titled either “Subscribe with obligation to pay” or “Subscribe Free” depending on the Subscription Plan and License Metric |
1.2 With the exception of the EULA, these terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
1.3 Terms not defined in these GTC shall have the meaning as defined in the EULA.
2. CONCLUSION OF CONTRACT
2.1 By clicking the Subscription Button (“register now” for free subscriptions and “order for a fee” for paid subscriptions) in the last step of the order process, the Customer submits a binding offer for a Subscription of the SaaS Service displayed in the order overview. The Customer also thereby declares that the Customer is a merchant within the meaning of the German Commercial Code. The provision of SaaS Service to consumers (sec. 13 BGB) is not governed by these GTC.
2.2 A contract comes into existence between the Customer and the Provider as soon as the Subscription order is confirmed by means of a separate email. Please regularly check the spam folder of your mailbox.
3. INFORMATION ON ADJUSTMENTS
3.1 To place an order, the Customer may start by placing the desired Licence in the shopping cart.
3.2 The Customer may modify at any time the desired quantity or delete Subscriptions completely from the cart. By clicking on the button „Next“, the Customer will be redirected to a website where the Customer may enter data and choose the payment method. The Customer can review the input on the overview page that will open up. Input errors can be corrected (e.g. with respect to the payment method, data or quantity), by clicking „Edit“ next to the respective field. The order process can be cancelled by closing the browser window. By clicking the confirmation button Subscription Button, the Customers declaration becomes binding in the meaning of clause 2.1 of these GTC.
3.3 Customer will receive the contractual provisions together with information on the goods ordered and/or services booked including these GTC and the information on the right of withdrawal by email upon acceptance of the contract offer or together with the notification thereof. Provider will not store the contractual provisions for Customer.
4. SUBSCRIPTION SERVICES
4.1 The Provider will enable the Customer to use the Software for the duration of the Subscription Term in accordance with the EULA.
4.2 The Provider is entitled to change services, in particular to change the Software due to technical advancements. The Provider will give at least one month notice before changing any services. The Customer may terminate the Agreement with two weeks’ notice until the date of the change if the changes are material. Material changes are changes which lead to less functionalities as in the previous version of the Software.
4.3 The Software will not be made available in physical form or as a download but will be made accessible via the internet through a browser.
4.4 The Provider will not be under any obligation to:
4.4.1 to provide Software Updates; or
4.4.2 to upgrade the Software or Documentation.
4.5 The Provider is under no obligation and makes no warranty relating to frequency of Software Updates.
4.6 The Provider will enable the use for 98,5% of each month. The Provider will inform the Customer before a scheduled maintenance that might affect the accessibility of the Software.
5. SUBSCRIPTION TERM
5.1 The subscription term is 12 Months (the “Subscription Term”).
5.2 The Subscription Term starts with the day of the confirmation of the order (the “Subscription Date”) and ends at the end of the last day.
5.3 Unless provided otherwise, the Subscription Term is tacitly automatically renewed at the end of the Subscription Term for an additional Subscription Term. /n/n5.4 The Customer may increase the number of eligible Users during the Subscription Term in accordance with the schedule in Annex 1. Any decrease of the number of eligible Users will only take effect with the next Subscription Term.
5.4 The Customer may increase the number of eligible Users during the Subscription Term in accordance with the schedule in Annex 1. If the number of users is expanded during the current period the subscription period is extended by 12 month from the acceptance of the order through the order confirmation of the expansion. Any decrease of the number of eligible Users will only take effect with the next Subscription Term.
5.5 By way of derogation from clause 5.1 to 5.3, the Subscription Term for a Test License is limited to three months from the day of the Subscription Date and is not renewable. If the test license is included in another license (“main license”) the test also ends automatically. The main license is extended according to the provision of clause 5.3.
6. LICENCE FEE
6.1 The Customer will pay the Provider the Licence Fee based on the licence metric and the Subscription term as depicted in Annex 1.
6.2 The Licence Fee is due at the beginning of each new calendar month. If the subscription begins after the beginning of the month, the pro rata Licence Fee is added to the next monthly payment. The payment can be made via invoice.
6.3 In the case of a renewal, the Licence Fee for the renewed term is in accordance with Section 6.2.
6.4 In the case of an increase of eligible Users during the Subscription Term in Clause 5.4, the Licence Fee is increased to the applicable higher Licence Fee on a pro rata basis for the remaining days of the Subscription Term. This 3increase is due immediately after the confirmation of the change. If the increase begins after the beginning of the month the pro-rata license fee will be added to the next monthly payment. For the avoidance of doubt, Customer has no right to downgrade within a Subscription Term unless otherwise agreed between the parties.
7. LICENCE
The Customer’s acceptance of these GTC alone does not grant the Customer any right to use the Software. The right to use the Software will be granted separately under the terms and conditions of the EULA, which have to be accepted by the Customer during the order proces
8. UPLOAD OF DATA
8.1 The Customer ensures that the Customer holds all necessary rights for any User content that is uploaded to the servers of the Provider.
8.2 The Provider is entitled to temporarily block any User immediately if there is a justified suspicion that the uploaded data is illegal and/or violates rights of third parties. A justified suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform the Provider of this. The Provider will immediately inform the Customer of the blockage and its reason. The User is unblocked as the suspicion is invalidated.
8.3 The provider is entitled to use the uploaded data to improve the software. The authorization expires if the customer removes the uploaded data or if these are deleted as part of the termination.
9. RIGHTS IN CASE OF DEFECTS
9.1 The Software provided by the Provider shall be substantially in accordance with the Documentation as made available by the Provider. Documentation shall not be deemed guaranteed unless separately agreed in writing. In respect of Updates, upgrades and the delivery of new versions, the Customer’s rights in case of defects shall be limited to the new features of the update, upgrade or new version compared to the previous version release.
9.2 The Provider will remedy any defects by way of improvements and/or a replacement of the Software. If the defect is not cured within a first time limit and the Customer has set the Provider a reasonable second time limit without success or if a reasonable number of attempts to remedy are unsuccessful, then Customer may, subject to the statutory prerequisites, opt to terminate the Subscription and/or claim for damages. The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. If the defect does not or not substantially impair the functionality, then Provider is entitled, to the exclusion of further rights in case of defects, to remedy the defect by delivering a new version or an Update as part of its version, Update and upgrade planning.
9.3 If the Customer is a merchant, the Customer is still obliged to pay the entire subscription fee in the case of a defect, unless the right to reduce the fee is undisputed or final and absolute under a court judgment. Any potential claims for unjust enrichment remain unaffected. Consumers may reduce subscription fees – where applicable - in accordance with the statutory provisions.
9.4 Defects must be notified in writing with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error. This shall not affect the statutory obligation of the Customer to inspect and notify defects.
9.5 Any claims for damages are subject to the limitations set forth under clause 10.1.
9.6 The Provider may refuse to remedy defects or deliver replacements, until the Customer has paid the agreed fees to the Provider, less an amount which corresponds to the economic value of the defect.
9.7 If the subscription is free, the rights in case of defects are restricted to the statutory liability for defects as described in Sec. 600 of the German Civil Code.
10. RIGHTS IN CASE OF DEFECTS IN TITLE
10.1 The Software provided by the Provider shall be free from third party rights, which prevent the use in accordance with the contract. Excepted from this are customary retentions of title.
10.2 To the extent that there are defects in title, the Provider is entitled at its option to either (i) take legitimate measures to remove the third party rights, which impair the contractual use of the Software, or (ii) remedy the enforcement of such claims, or (iii) change or replace the Software in such a manner, that it no longer infringes the rights of third parties, provided and to the extent that this does not substantially impair the warranted functionality of the Software.
10.3 If a release under clause 10.2 within a reasonable time limit set by the Customer fails, then the Customer may subject to the statutory prerequisites at its option terminate the Subscription or claim damages.
10.4 In all other respects clauses 9.3, 9.4, 9.5 and 9.6 apply accordingly.
11. LIABILITY AND DAMAGES
11.1 The Provider shall be liable under the terms of this Agreement only in accordance with the provisions set out under clauses 11.1.1 to 11.1.5:
11.1.1 The Provider shall be unrestricted liable for Losses caused intentionally or with gross negligence by the Provider, its legal representatives or senior executives and for Losses caused intentionally by vicarious agents in performance; in respect of gross negligence of other assistants in performance the Provider’s liability shall be as set forth in the provisions for simple negligence in clause 11.1.5 below.
11.1.2 The Provider shall be unrestricted liable for death, personal injury or damage to health caused by the intent or negligence of the Provider, its legal representatives or assistants in performance.
11.1.3 The Provider shall be liable for Losses arising from the lack of any warranted characteristics up to the amount which is covered by the purpose of the warranty and which was foreseeable for the Provider at the time the warranty was given.
11.1.4 The Provider shall be liable in accordance with the German Product Liability Act in the event of product liability.
11.1.5 The Provider shall be liable for Losses caused by the breach of its primary obligations by the Provider, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which the Customer may rely. If the Provider breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by the Provider at the time the respective service was performed.
11.2 The Provider shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
11.3 Any more extensive liability of the Provider is excluded on the merits. In particular, the Provider is not liable for initial defects, except in cases of clause 11.1.
12.DATA PROTECTION
12.1 The use of personal data will be in accordance with the Privacy Notice, which can be accessed at https://www.up2parts.com/en/privacy-policy
12.2 Provider processes personal data on behalf of the Customer. Annex 2 governs the processing of personal data and forms an integral part of these GTC
13. EXPORT CONTROL
The Customer will comply with all Export Laws and Sanctions
14. TERMINATION
14.1 Any party may terminate the Subscription before the end of the Subscription Term with four weeks notice. The Customer may do so by E-Mail to support(at)up2parts.com that contains the respective declaration as well as the customer and contract information. The Subscription Term will not be renewed in this case. The Customer will be able to use Software until the end of the Subscription Term.
14.2 If a party:
14.2.1 commits a material breach of this these GTC or the EULA which cannot be remedied; or
14.2.2 commits a material breach of these GTC or the EULA which can be remedied but fails to remedy that breach within 14 days of a written notice referring to this clause 14.1, setting out the breach and requiring it to be remedied being given by the other party,
the other party may terminate the Subscription by giving not less than 14 days’ written notice to that effect to the party in breach provided that the notice to terminate is given within six months from the date of the material breach occurring or the party terminating the Subscription becoming aware of it, whichever is the later.
14.3 Subject to clause 14.4, the Provider may terminate the Subscription by giving not less than 7 days’ written notice to that effect to the Customer if the Customer fails to make any payment due to the Provider under the Subscription within 14 days after the due date.
14.4 The right of termination set out in clause 14.3 will not arise in respect of any failure to make payment of any sum if the amount of such sum is and remains the subject of a bona fide dispute between the Customer and the Provider (where any sum which is not part of the bona fide dispute has been paid in accordance with these GTC) and for a period of 7 days following resolution of such dispute.
14.5 The Provider may terminate the Subscription with immediate effect by giving notice to the Customer if:
14.5.1 any Sanction is imposed in respect of any country or territory from which the Software, Documentation or Services are exported or provided or into which they are imported or in which they are received;
14.5.2 a Sanction is made in respect of the Customer or any User or in respect of any country in which the Customer or any User is incorporated or operates;
14.5.3 the Provider has reasonable cause to believe that the continued licensing of the Software or performance of any of the Services is or would be in violation of or a breach of any Sanction or Export Law; or
14.5.4 the Provider has reasonable cause to believe that the Customer or any User has breached or is likely to breach any Sanction or Export Law.
14.6 The parties acknowledge and agree that if, at any time, a party is entitled to exercise more than one right of termination under these GTC, such party may, at its sole discretion, elect which (if any) termination right or rights it wishes to exercise.
15. CONSEQUENCES OF EXPIRY OR TERMINATION
15.1 Following the Termination Date:
15.1.1 the following provisions will continue in force: clauses 11, 12, 15, 19-19 together with any other provisions which expressly or impliedly continue to have effect after expiry or termination of the Subscription; and
15.1.2 all other rights and obligations will immediately cease (including, without limitation, the licences granted in clause 2) without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the Termination Date.
15.2 Within 30 days after the Termination Date the Provider will return to the Customer or delete all copies of Customer data in its possession or control unless the Provider is required to keep copies for any regulatory purpose in which case the Customer has the burden of proof.
16. SEVERANCE
If any term of these GTC is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from these GTC and this will not affect the remainder of these GTC which will continue in full force and effect.
17. ASSIGNMENT
17.1 Except for monetary claims, the Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under these GTC.
17.2 The Provider will be entitled in its sole discretion to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under these GTC
18. SUB-CONTRACTING
18.1 The Customer will not be entitled to sub-contract any of its obligations under these GTC.
18.2 The Provider will be entitled to sub-contract any of its obligations under these GTC. The Provider will ensure that any such sub-contractor is bound by contractual terms substantially equivalent to those which apply to the Provider’s obligations under these GTC.
19. CHANGE OF TERMS
19.1 The Provider may change these GTC or the EULA. The Provider will inform the Customer about any upcoming changes. If the Customer does not reject these changes within 6 (six) weeks after being informed by the Provider, the changes will take effect and become binding between the Parties with the beginning of the next renewed Subscription Term.
19.2 The Parties’ rights of Termination remain unaffected.
19.3 With the information on the upcoming changes, the Provider will also inform the Customer about his right to reject the changes and the effects of an omission.
20. GOVERNING LAW AND JURISDICTION
20.1 These GTC and any non-contractual obligations arising out of or in connection with it will be governed by the laws of Germany. The United Nations convention on contracts for the international sale of goods shall not apply.
20.2 The courts for the Provider’s registered office shall have exclusive jurisdiction over all disputes under and in connection with these GTC.