Terms of use for the perma CONNECT via Web App and the corresponding mobile APP

A. Terms and conditions for the use of perma CONNECT via WebApp and the associated mobile app

1. Applicability, definitions

1.1

These terms of use of perma-tec GmbH & Co. KG, Hammelburger Str. 21, 97717 Euerdorf, Germany (hereafter referred to as the “provider”), apply to the use of the online service made available by the provider via the website given under perma-connect.com with the designation “perma CONNECT” and the relevant app provided via the Apple App Store or the Google Play Store (each hereafter referred to as the “app store”). Use is permitted for business purposes only.

1.2

Deviations from these terms and conditions require written confirmation from perma-tec in order to come into effect.

1.3

In addition to these terms of use, further special terms of use in relation to the use of the app (licence conditions) for the relevant app store operator may apply. These terms of use shall exclusively apply where the terms of use for an app store operator in relation to the use of the app are contrary to these terms of use. The terms of use of an app store operator shall otherwise apply as a supplement to these terms of use.

1.4

In addition to the - currently fee-free - provision of perma CONNECT, the Provider offers the User maintenance and support services ("Customer Support") in connection with perma CONNECT for a fee. With regard to these services of the Provider, the separate terms and conditions for Customer Support in Section B apply.

2. Services of the provider

2.1

With perma CONNECT, the provider makes available to users an online service for support in the installation, maintenance and replacement of the lubrication systems of the provider. perma CONNECT is a supplementary service from the provider through which users are given non-binding recommendations on the handling of the lubricants / lubrication systems of the provider and its fill level based on the non-verifiable information maintained by them in a database. perma CONNECT is solely a non-binding information tool. Binding orders will not be made by perma CONNECT and must be made separately by users where necessary.

2.2

perma CONNECT gives users, in accordance with their selection, non-binding information on the status of the lubrication systems after a log-in and / or by e-mail and supports them in the generation of an order proposal for the lubricants / lubrication systems which require to be replaced. No order is triggered by perma CONNECT. perma CONNECT shall on no account act as a substitute for careful monitoring of all lubricants / lubrication systems and equipment by users themselves.

2.3

The provider enables users to have access to perma CONNECT and places an appropriate soft-ware product at their disposal, which then remains on the server of the provider. The unlimited provision of storage space for the data generated by the user through the use of perma CONNECT and / or the data required for the use of perma CONNECT of the application (hereinafter: application data) is not owed (see Section 2.6). The provider shall not be liable for the establishment and maintenance of the data connection between the IT system of users and the server of the provider.

2.4

perma CONNECT is offered on condition of its availability, insofar as the service is provided free of charge. In this case, the user has no claim to a specific availability of the services, either in total or for specific dates. In particular, maintenance, safety or capacity issues and results which are not within the power of the provider (disturbances in public communication networks, power cuts etc.) may lead to disturbances or to a temporary standstill of the service. The provider shall carry out maintenance work at times of low use where possible and inform the user in advance about any planned work.

2.5

The software for perma CONNECT shall be updated by the provider at irregular intervals. Users shall accordingly receive only rights of use to the respective current version of the software. On the other hand, users shall have no right to an adaptation of the software to a particular condition, insofar as the software is provided free of charge.

2.6

The provider is authorised to delete application data (cf. Section 2.1, p. 2) stored for more than 2 years from its servers at regular intervals without prior notice.

2.7

The provider may use non-personal application data for the purposes of its own product monitoring, product development and product improvement. In addition, the provider may anonymise any personal application data and then also use it for the aforementioned purposes. The User shall inform its employees that personal application data may be used by the Provider as described above.

3. Changes to services

3.1

The provider shall retain the right to change the services offered or to offer different services unless this would be considered unreasonable for users.

3.2

The provider additionally retains the right to change the services offered or to offer different services,

• where the provider is obliged to do this as a result of a change in the legal situation;

• where the provider thus meets the obligations of a legal judgment against itself or the decision of an administrative authority;

• where the change in question is necessary in order to close existing safety loopholes;

• if the change is of sole benefit to users; or

• if the change is of a pure technical or process-related nature without significant effects on users.

3.3

Changes which only have a minimum influence on the functions of perma CONNECT do not rep-resent changes in services as defined in the above paragraphs. This applies in particular to changes of a purely graphical type and a simple change in the arrangement of the functions.

4. Registration

4.1

In order to be able to make use of the services of the provider, users must register for perma CONNECT by entering their personal data before the first use of perma CONNECT. The registration takes place through the opening of a user account, which users may set up via the website of the provider.

4.2

The registration is restricted to any natural or legal entities and partnerships which act as businessmen.

4.3

All users may set up one user account for perma CONNECT for themselves. The users set their own individual passwords. Their right of use of perma CONNECT is only valid for themselves personally and is non-transferable. The disclosure or transfer of the registration data to third parties is not permitted.

4.4

The data which is requested as part of the registration must be fully and correctly entered by users. Users are obliged to always maintain these data up-to-date (also e-mail addresses). The data transferred will not essentially be checked by the provider in terms of their correctness and completeness.

4.5

The registration process and the establishing of contact take place by e-mail and the automated registration. Users must ensure that the e-mail address given by them in the registration is accurate so that they may receive e-mails sent by the provider and register themselves for perma under their address.

5. Granting of rights of users by the provider

5.1

The provider shall grant users a simple, non-transferrable right, which shall be restricted to the duration of the user contract, to use perma CONNECT and the software contained within it in accordance with these terms of use for business purposes and shall verify that it is entitled to grant these rights. The right of use shall permit access to perma CONNECT, in addition to the editing and saving of personal information, analysis with the software provided, the downloading and printing out of the results of analyses and the transfer of individual analysis results, or parts thereof, into user documents.

5.2

The provider does not provide any source- or machine codes. The user may only use perma CONNECT and the software contained for his own purposes and without any changes. Users shall ensure that they do not provide any alternative possibilities for access to perma CONNECT to third parties.

5.3

If users should violate the agreement which has been made on the rights of users so severely that it would be considered unreasonable for the provider to continue the contractual relationship when taking both parties’ interests into account, the provider may extraordinarily terminate the granting of the rights of users without any previous warning and permanently block the access to perma CONNECT.

5.4

The other legal and contractual regulations remain unaffected by this.

6. Obligations on the part of users

6.1

Users shall ensure that the hardware and software deployed by them, including workplace computers, routers, data communication systems etc., meet the minimum technical requirements for the use of the software version which is currently offered.

6.2

Users shall be essentially liable for all activities which are undertaken by the use of their access where they are responsible for this. Users shall be responsible for the confidentiality of access data. They must ensure that they are not made accessible to third parties. Users must inform the provider without delay if there are indications that their access is or was used by any third parties.

6.3

The user is requested to report malfunctions, bugs and errors tot the provider without any delay.

7. Rights of the provider in the case of violations of terms

7.1

Should users violate any legal provisions or these terms of use, or if the provider has specific indications of this, the provider shall have the right, without giving previous notice and undertaking further investigation,  

• to issue a warning,

• to temporarily or permanently block access by users or

• to take other necessary and appropriate measures.

• The measures the provider takes are dependent on the individual case in question and shall be made as the provider reasonably sees fit.

7.2

Should access for users be blocked, they may no longer use perma CONNECT and the software contained within it and may not re-register themselves for it.

7.3

The provider expressly retains the right to instigate legal proceedings due to a violation by users of legal provisions or of these terms of use.

8. Remuneration

The use of perma CONNECT is for free. However, the provider shall retain the right to offer the online service at a full or partial charge in the future.

9. Liability

The provider shall be liable to users for all contractual, quasi-contractual and legal, also tort law, claims for damages and reimbursement as follows:

9.1

The provider is unrestrictedly liable on any legal grounds

• in cases of intent or gross negligence,

• in cases of intentional or grossly negligent injury to life, body or health

• as a result of a guarantee promise where not otherwise regulated,

• due to compulsory liability, as given in product liability law.

9.2

Should the provider negligently violate a fundamental contractual obligation, the liability shall be limited to foreseeable damage typical of the contract concerned where the provider is not unrestrictedly liable in accordance with the above paragraph. Fundamental contractual obligations are those obligations which the contract imposes on the provider in accordance with its content for the achievement of the purpose of the contract, the fulfilment of which make the proper execution of the contact possible and on whose maintenance users may regularly rely.

9.3

A liability on the part of the provider is excluded, irrespective of the legal grounds.

9.4

The above liability provisions also apply with respect to the liability of the provider for its agents, employees and legal representatives.

9.5

A liability for loss of data caused by technical failures, interrupted data transfers or other problems and damage in this connection for which the provider is not responsible shall be excluded. The provider shall not be liable for damage which is caused by a disruption to its operations or to the operation of its online service as a consequence of force majeure, riots, events due to war or natural events or as a consequence of other occurrences not within the responsibility of the provider (e.g. strikes, lockouts, traffic disturbances, decrees from public authorities both domestically and abroad) or which are due to technical problems which are not culpably caused. This shall also apply where this disturbance occurs at third parties contracted by the provider.

10. Duration of the contract, termination

10.1

The contract for the use of perma CONNECT shall be concluded for an indefinite period and may, however, be terminated by both parties without observing any notice period. The provider is also entitled to discontinue perma CONNECT in whole or in part at any time at his own discretion.

10.2

If the user does not log into his account for one year, the contract will automatically be terminated. The user will be informed in advance so that he can prevent the termination by logging in if desired.

10.3

The user is not entitled to register again if the contract is terminated for one of the following reasons:

• a violation of fundamental clauses contained in these terms and conditions which is not eliminated even after the setting of a deadline or which is repeatedly committed and renders a continuation of the contractual relationship either impossible or unreasonable;

• a re-registration while access is still blocked.

10.4

Terminations may take place either in writing or in text form (e.g. by e-mail), also via the APP.

10.5

If the user contract is terminated, users shall lose the right to access their user account upon ending of the contract. The obligation of the provider to store any data which has been set shall also expire on the ending of the user contract.

11. Change to the terms of use

11.1

The provider shall retain the right to change the terms of use without giving any reason unless this would be considered unreasonable for users. The provider shall notify users in text form of changes to the terms of use 2 months before coming into force. The offered changes shall only come into effect once they are accepted by the user. Silence on the part of the user shall only be deemed acceptance of the offered changes (fiction of consent),

• where it is obliged to do this as a result of a change in the legal situation;

• where it thus meets the obligations of a legal judgment or an authority decision against the provider or where the court decision has general impact (e.g. supreme court jurisdiction);

• where it introduces additional, completely new service provisions, services or elements of services which demand a description of the services in question in the terms of use, unless the previous usage is detrimentally changed as a result ;

• if the change is of sole benefit to users, or

• if the change is of pure technical or process-related nature without significant effects on users.

11.2

If the user objects to the changes until before they come into force, the contractual relationship shall continue to exist under the original conditions. The provider shall advise users in the notification of their right of objection and of the significance of the objection period.

11.3

The right to termination in accordance with paragraph 10 shall remain unaffected by this.

12. Applicable law

The law of the Federal Republic of Germany shall apply to all legal relations between the parties.

13. Place of jurisdiction

The exclusive place of jurisdiction for all disputes arising from this contract shall be Schweinfurt. However, in the above cases, the provider shall be entitled in any case to bring the matter before the court at the registered office of users. This also applies if the user does not have a place of jurisdiction in Germany.

B. Terms and conditions for the provision of maintenance and support services ("Customer Support") in connection with perma CONNECT

1. Applicability, definitions and services of the provider

1.1

These terms and conditions apply - in deviation from the terms of use pursuant to Section A ("Terms and conditions for the use of perma CONNECT via WebApp and the associated mobile app") - to the provision of the following maintenance and support services ("Customer Support") by the Provider:

• Consultancy and support services in connection with the functions of perma CONNECT

• Analysing and handling errors that occur during the use of perma CONNECT

• Adaptation of perma CONNECT to any changes in the technical environment (e.g. new operating system versions, drivers or hardware)

• Delivery of new, enhanced and/or bug-fixed versions (e.g. updates and upgrades) of perma CONNECT.

1.2

The error handling by the provider in accordance with section 1.1 includes the localisation of the cause of the error, error diagnosis and services aimed at rectifying the error (in particular patches and service packs). The provider assumes no responsibility for rectifying the error. Error handling services may, at the provider's discretion, also be provided by means of a workaround, update or upgrade delivery and, after consultation with the user, also by delivery of a new version.

1.3

As far as the provider provides computer programs or other works that are independently protectable under copyright law for use on the basis of these terms and conditions, these computer programs and the rights of use granted to the user are subject to the terms of use in accordance with Section A. As far as updates, upgrades, new program versions are delivered or provided by perma CONNECT on the basis of these terms and conditions, the provisions in Sections 2.3 - 2.5 of the terms of use in accordance with Section A apply with regard to the perma CONNECT innovations contained therein, which do not represent mere error correction.

1.4

Customer Support only covers perma CONNECT installed at installation locations that the user has previously notified the provider of in writing. The Provider must be notified in writing of any change of installation location. Additional costs arising from the change of installation location in the provision of the services owed under these terms and conditions shall be borne by the user. Unless otherwise agreed, the Customer Support services do not include the following:

• Services outside agreed periods of support availability (see below)

• Services for perma CONNECT if perma CONNECT is not used under the operating conditions specified by the provider

• Services for perma CONNECT if perma CONNECT has been modified by programming work not carried out by the provider

• Services for computer programmes or parts thereof that are not part of perma CONNECT

• Services for perma CONNECT with a release status that is no longer maintained by the provider.

2. The availability of customer Support

The following service and response times apply to error messages. The times of the time zone at the provider's registered office are decisive.

Error messages are accepted on working days (Monday - Thursday from 09:00 - 16:30 and Fri-days from 09:00 - 12:00 with the exception of public holidays in Bavaria) (hereinafter: support times) by telephone or by e-mail to connect@perma-tec.com.

After receipt of a sufficiently specified error description, which includes error behaviour, affected product components and steps already taken, the following defined response times of the provider apply - depending on the classification of the error according to the following error classes. Response time refers to the period of time within which the provider begins work. It is suspended outside the times defined below.

3. Cooperation and obligations of the user

3.1

The Contracting Parties shall undertake to cooperate closely and efficiently, for which the personnel, organisational, professional and technical responsibility of the User is also essential, in particular to

• to provide proper documents, documentation and information required for the provision of the service, in particular about existing systems, devices, computer programmes and computer programme parts that are to interact with the service to be provided

• to document in a reproducible, and in any case in a comprehensible form, any errors detected in the course of the test or live operation of services provided and to notify the provider of these immediately;

• to fulfil the (cooperation) obligations in due time, to perform the (cooperation) actions in due time and to submit declarations in due time.

3.2

The user shall name at least one employee to the provider in writing as a contact person, including a contact address (postal and/or e-mail), with whom the provider can also correspond on matters essential to the contract (e.g. remuneration, cancellation, customer support). The provider shall be informed immediately of any changes to the contact person. The contact person should have experience in dealing with perma CONNECT.

3.3

If the User is in delay with the fulfilment of the actions for which he is responsible, the Provider's obligation to perform shall be suspended for the duration of the delay, which cannot be provided without this action or can only be provided with disproportionate additional expenditure. The User shall reimburse the Provider for any additional expenditure caused by this in addition to the agreed remuneration on the basis of the applicable remuneration rates in accordance with Annex 1. The Provider's statutory right of cancellation shall remain unaffected.

3.4

The provider has the right to use subcontractors to fulfil this contract.

4. Remuneration

4.1

The User shall pay the agreed remuneration. Unless expressly agreed otherwise, this shall be calculated according to the actual expenditure incurred on the basis of the provider's remuneration rates in Annex 1 to these terms and conditions valid at the time the contract is concluded.

4.2

Services outside the agreed scope of Customer Support or the subject matter of the contract shall be remunerated separately by the User. This shall also apply to additional expenses incurred due to customisations and/or changes requested by the User for which the Provider is not responsible. The Provider's remuneration rates in Annex 1 shall apply.

4.3

The Provider is entitled to adjust the remuneration to be paid at its reasonable discretion in line with the development of the costs that are decisive for the calculation of the remuneration. The remuneration may be increased and the price reduced if, for example, the costs for the provision of Customer Support (e.g. costs for service providers and services, IT systems, energy, infra-structure, personnel) increase or decrease or other changes in the technical or legal framework conditions lead to a changed cost situation. Increases in one type of cost (e.g. infrastructure costs) shall only be used to increase the remuneration to the extent that they are not offset by any declining costs in other areas (e.g. price reductions in the area of infrastructure). Changes to the remuneration in accordance with this clause are only possible at the beginning of the year. The Provider shall notify the User of the change in text form no later than six weeks before the planned effective date. The User may terminate the contract at any time in accordance with Section 6. The provider shall indicate this separately in the price change notification.

4.4

The provider shall invoice the remuneration. Invoices are due for payment without deduction within 14 days of the invoice date. If the user is in default of payment, interest shall be charged on the outstanding amount at 8 percentage points above the applicable base interest rate. This shall not affect the assertion of further rights. Subject to an expressly deviating regulation, all amounts stated in Annex 1 are net amounts, i.e. plus the statutory value added tax.

5. Liability, compensation

The provisions of paragraph 9 of the Terms of Use pursuant to paragraph A shall apply.

6. Duration of the contract, termination

The contract for the use of perma CONNECT is concluded for an indefinite period and may be terminated by either party at any time without notice. The right to terminate without notice for good cause remains unaffected. Cancellations must be made in writing or in text form (e.g. e-mail).

7. Change to the terms of use

The provisions of paragraph 11 of the Terms of Use pursuant to paragraph A shall apply.

8. Applicable law

The provisions of paragraph 12 of the Terms of Use pursuant to paragraph A shall apply.

9. Place of jurisdiction

The provisions of paragraph 13 of the Terms of Use pursuant to paragraph A shall apply.

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Annex 1: GENERAL TERMS & CONDITIONS FOR perma INSTALLATIONS & REPAIRS