General Terms and Conditions for SINDRI Service
(Continental Aftermarket & ServiceS GmbH, Version 1.1, 19.09.2022)
1. SCOPE OF THE GENERAL TERMS AND CONDITIONS, PARTS OF THE CONTRACT
1.1 CONTINENTAL AFTERMARKET & SERVICES GmbH (hereinafter, “CONTINENTAL”) provides its Service “SINDRI Service” (“SINDRI Service” or the “SERVICE”) exclusively based on the following General Terms and Conditions (hereinafter, the “T&C’s”). The T&C’s and the following documents constitute the contractual basis for the provision of SINDRI service (the “Agreement”)
1) Customer’s Online Order and Contract Conclusion Sheet for SINDRI SERVICE
2) (Specific) Service Description SINDRI SERVICE
3) Data Processing Agreement (DPA)
These T&C’s including the further documents mentioned above apply only to the SINDRI SERVICE and not to other services from CONTINENTAL.
1.2 If there are any inconsistencies between the documents mentioned in Section 1.1 of this Agreement, the order of priority shall be as follows – exempt where otherwise expressly stated in this Agreement: (i) Contract Conclusion Sheet; (ii) Customer’s online Order ; (iii) T&C’s; (iv) Service Description SINDRI service, (v) Data Processing Agreement (DPA). Other documents referenced by this Agreement are on the same level of precedence as the part of the Agreement in which they are referenced. For the avoidance of doubts, the Data Processing Agreement shall take precedence over all other contractual documents mentioned in this Section 1.1 as far as mandatory data protection requirements are affected.
1.3 General Terms & Conditions of the CUSTOMER are not accepted. This shall also apply if CONTINENTAL provides services without reservation in the knowledge of the CUSTOMER’s conflicting general terms and conditions.
2. NON-BINDING NATURE OF ADVERTISING STATEMENTS, CONTRACT CONCLUSION
2.1 Offers, statements and/or information made and/or given by CONTINENTAL in brochures, advertisements and similar items – also with regard to prices – are and remain non-binding and subject to changes without notice unless a binding, specific offer and/or commitment has expressly been made.
2.2 The contract with the CUSTOMER regarding the respective SINDRI service shall enter into effect when the respective Online Order of the CUSTOMER have been explicitly accepted by CONTINENTAL by way of an electronic contract conclusion / Contract Conclusion Sheet , by an explicit order confirmation of CONTINENTAL and/or a written document properly signed by both contractual partners, but at the latest with the first use of SINDRI Service by the CUSTOMER and/or its Users.
3. SUBJECT OF SINDRI SERVICE
3.1 The subject of the agreed service is the provision of SINDRI service, a service to access and analyze on-board diagnostic data from vehicles, against payment for the usage by the CUSTOMER as Software as a Service (SaaS) and/or Platform as a Services (PaaS). Details are set forth in the Section 5 of these T&C’s, the Service Description as well as the Data Processing Agreement.
3.2 Data connection between the CUSTOMER’s PC browser/tablet device and the SINDRI Service (e. g. via Internet) as well as the Hardware (PC/tablet device) and/or Software (PC browser/tablet OS) used by the CUSTOMER are not subject of this Agreement and are not provided by CONTINENTAL (see also section 14.4 below). Solely the CUSTOMER and/or the user are responsible for that.
4. PROVISION OF HARDWARE (DAD-C1 DEVICE)
Upon request, CONTINENTAL will provide the Hardware required for using the SINDRI Service for the CUSTOMER (i.e., DAD-C1 device for accessing the vehicle data) by purchase. In that case, the following additional conditions shall apply:
4.1 BY PURCHASE
4.1.1 When hardware is shipped to the CUSTOMER, the risk of loss shall pass to the CUSTOMER as soon as CONTINENTAL has handed over the delivery to the respective transport person.
4.1.2 If the CUSTOMER purchases hardware, CONTINENTAL reserves all proprietary rights until the purchase price has been completely paid. The CUSTOMER shall treat all products or goods provided by CONTINENTAL with all due care until the ownership has passed to it. The CUSTOMER shall immediately notify CONTINENTAL in writing of any seizure, insolvency, damage or loss of the products or goods, as well as any change of ownership or changes in its place of business. The CUSTOMER has the right to use the hardware and to sell it in the normal conduct of its business as long as the CUSTOMER is not in default with its payments.
4.1.3 If the hardware is defective in such a way that its use in accordance with this Agreement is not only insignificantly impaired, the CUSTOMER has the right by choice of CONTINENTAL to either repair or replacement (supplementary performance).
4.1.4 In the case of a defect of the hardware, the CUSTOMER has the right to cancel the contract or to claim for a reduction in payment only if it has previously granted CONTINENTAL a reasonable period of time for subsequent performance upon first request and CONTINENTAL refuses subsequent performance or such subsequent performance fails.
4.1.5 In case of an insignificant deviation of the performance / hardware, that does not impair the functional capabilities, the CUSTOMER may only demand a reasonable reduction of the remuneration.
4.1.6 The warranty period shall last for 2 years upon delivery.
4.1.7 Other rights and remedies of the CUSTOMER with respect to a defect of the hardware shall be excluded.
5. PERFORMANCE OBLIGATIONS OF CONTINENTAL
5.1 CONTINENTAL provides the CUSTOMER with the SINDRI Service subject to these T&C’s as Software as a Service or Platform as a Service and makes it accessible for use via a data network (e. g. internet).
5.2 CONTINENTAL is not obliged to provide its services on own servers or own storage space. However, CONTINENTAL is authorized to commission third party service providers or subcontractors including Cloud Providers / Cloud Services.
5.3 CONTINENTAL shall provide the CUSTOMER with the data and identifications (user name, and allow customer to set their own password)) required to access the SINDRI Service ("Access Data").
6. SOFTWARE, RIGHTS OF USAGE
6.1 Limited to the term of the SINDRI Service, CONTINENTAL grants the CUSTOMER a non-exclusive, non-transferable, non-sublicensable, revocable usage right for SINDRI Service as Software as a Service and/or Platform as a Service including all necessary rights to access and to make use of the Services agreed upon and as specified in the Service Description. If CONTINENTAL provides new versions, updates, upgrades etc. during the term of this Agreement, the above rights shall apply respectively.
7. MAINTENANCE / MONITORING / DATA SECURITY
7.1 CONTINENTAL undertakes to provide constant care and maintenance of the SINDRI Service in accordance with the following provisions.
7.2 CONTINENTAL is entitled to replace previous versions of the SINDRI Service with newly developed versions at any time, in particular, if this is necessary, to adapt the Services to changed legal requirements and/or standards or to adapt it to technical or scientific knowledge; Section 12 shall apply accordingly. In the case of third-party software and/or services, CONTINENTAL shall proceed accordingly as far as the developer of the software has provided a new development or adaptation to CONTINENTAL.
7.3 CONTINENTAL undertakes to monitor and maintain the SINDRI Service. The CUSTOMER shall be informed of any errors or malfunctions, which not only insignificantly impair or limit the use of the agreed Services in due time; whether warranty and/or defect claims exist in that relation is subject to Section 14.
8.1 CONTINENTAL will provide a technical hotline, which the CUSTOMER can contact via telephone or contact form. The hotline serves solely to support the CUSTOMER in using the SINDRI service as provided and laid out in this Agreement. CUSTOMER requests to the hotline will be processed in the order in which they are received.
9. DATA USAGE, DATA PROTECTION, DATA PROCESSING AGREEMENT (DPA)
9.1 In order to provide the SINDRI Service CONTINENTAL needs to track, monitor, collect, share, store and process data of the CUSTOMER collected when using the SINDRI Service (“DATA”). CUSTOMER acknowledges and agrees that CONTINENTAL may collect DATA and analyze, use and disclose such DATA in an aggregated format (“AGGREGATED DATA”) to monitor the security of the SINDRI Service, and for CONTINENTAL’s business purposes; provided such AGGREGATED DATA is not personally identifiable (no personal related data) nor uniquely identifies end users.
10. DUTIES AND RESPONSIBILITIES OF THE CUSTOMER
10.1 The CUSTOMER is responsible for establishing the data connection between its IT-Systems and the SINDRI Service (e.g., via Internet) as described in Section 3.3.
10.2 The CUSTOMER is obliged to ensure that the hardware and/or software used by it, including computers, routers, tablets etc., are in line with the common state-of-the-art and will be maintained and/or updated regularly in accordance with the recommendations of the respective manufacturers; any technical specifications and/or minimum requirements for SINDRI Service published by CONTINENTAL shall be complied with.
10.3 The CUSTOMER grants CONTINENTAL the right to reproduce the data stored by the CUSTOMER using the SINDRI Service to the extent necessary to render the services to be provided under this Agreement. In order to correct problems, CONTINENTAL is also authorized to make changes in the structure or the data format.
10.4 The CUSTOMER is obliged to maintain confidentiality towards third parties with regard to any access-data and/or user identifications provided by CONTINENTAL and to secure them against any unauthorized access so that any misuse of the data by third parties is excluded. Passwords should be changed at regular intervals. CONTINENTAL must be notified without undue delay through the service hotline about any loss and/or disclosure of any access identification to third parties. CONTINENTAL will then block the access and assign a new user identification to the CUSTOMER.
10.5 The CUSTOMER is not permitted to modify, change, copy, reverse-engineer, disassemble or decompile software, unless this is permitted by respective law applicable .
10.6 The CUSTOMER will immediately inform CONTINENTAL of any change in his company name/name, place of residence or business or legal form without undue delay.
10.7 CUSTOMER undertakes not to and ensures that users do not use the SINDRI Service for any illegal purpose; or send any illegal or harmful data to or via the SINDRI Service; or interfere with or disrupt the SINDRI Service (“PROHIBITED USE”).
11. PAYMENT TERMS, EXCLUSION OF OBJECTIONS
11.1 Unless provided otherwise, payments for purchase of hardware devices shall become due directly upon purchase.
11.2 Invoices are due for payment within two (2) weeks of receipt. The CUSTOMER may issue a direct debit authorization to CONTINENTAL in order to simplify payments and/or other payment methods accepted by CONTINENTAL.
11.3 If the CUSTOMER is in default of payment for more than thirty (30) days, CONTINENTAL reserves the right to suspend the CUSTOMER's access to the SINDRI Service after a written demand for payment and the futile expiry of a reasonable grace period. In this case, the CUSTOMER remains obliged to pay the agreed fees in full when due.
11.4 The CUSTOMER must raise objections against invoices without undue delay in text form (§ 126 b BGB, e. g. letter, email), at the latest within a period of six weeks after their receipt (“objection period”). Failure to raise objections in due time shall be deemed as acceptance of the respective invoice. CONTINENTAL will expressly inform the CUSTOMER of the consequences of failing to observe the prescribed deadline before the beginning of the respective objection period (e.g. within the invoices).
12. CONTRACT MODIFICATIONS
12.1 CONTINENTAL is entitled to modify the SINDRI Service at any time if such modifications are in favor of the Customer and the contractual terms and conditions as well as the remuneration remain unchanged. Furthermore, changes to the SINDRI Service are permissible as far as this is objectively reasonable for the customer and the contractual services will not be significantly changed; this may in particular include technical improvements and innovations as well as changes for legal, technical, operational or security reasons. Material changes to the Service will be notified to the CUSTOMER within reasonable time in advance. If a change in the Service affects the essential interests of the CUSTOMER in such a way that it is no longer reasonable to the CUSTOMER to adhere to the Agreement, the CUSTOMER has the right to terminate the Agreement within one month upon the change has come into effect and observing a notice period of [6 weeks].
12.2 CONTINETAL reserves the right to change the contractual conditions of this Agreement and in particular these T&Cs with effect for the future. Therefore, CONTINENTAL shall inform the Customer in text form (§ 126b BGB - e. g. letter or e-mail) about such changes to the Agreement within reasonable time in advance, however not later than 8 weeks prior the changes become effective. Such changes shall be deemed accepted by the CUSTOMER, unless the CUSTOMER rejects the changes within a notice period of [6 weeks] upon receipt of the change notification. Insofar as the CUSTOMER rejects the changes in time, the contractual relationship shall continue unchanged on the basis of the current Agreement including the current terms and conditions.
12.3 In the event that the CUSTOMER rejects the changes in time, CONTINENTAL is entitled to terminate the Agreement by observing a notice period of three (3) months to the end of a calendar month (special termination right).
CONTINENTAL will inform the CUSTOMER about the consequences of rejecting and failing to reject in due time within the change notification.
12.4 Apart from that, the PARTIES may agree to make changes to the SERVICES (“CHANGE”), provided that no such CHANGES will be effective unless and until documented in a written change order to the applicable service schedule that is executed by both PARTIES and specifies the agreed conditions. For the avoidance of doubt, change orders shall not be required for (a) any hardware or software updates, patches, fixes, or other changes by or on behalf of CONTINENTAL related to CONTINENTAL’s provision of the SERVICES, or (b) any changes by CONTINENTAL to the third parties who provide products, hard-ware, software, or services related to CONTINENTAL’s provision of the SERVICES.
13. TERM, TERMINATION
13.1 This AGREEMENT remains in force until terminated (“TERM”).
13.2 The SINDRI Service is provided as subscription and has an initial term of (1) year (“INITIAL PERIOD”) and shall automatically renew for an unlimited number of additional one (1) year periods (“RENEWAL PERIOD”, collectively with INITIAL PERIOD, the “SERVICE PERIOD), unless either PARTY gives the other PARTY notice of non-renewal at least 30 days before the end of the SERVICE PERIOD.
13.3 CONTINENTAL may change the FEES for any RENEWAL PERIOD by providing CUSTOMER with notice at least sixty (60) days before the end of the SERVICE PERIOD.
13.4 In the event that the statutory Value Added Tax rate (VAT) changes, CONTINENTAL is entitled to adjust its remuneration accordingly. In this case, the CUSTOMER has no right of termination.
13.5 CONTINENTAL may suspend CUSTOMER’s access to and use of the SINDRI Service in case (i) of PROHIBITED USE, or (ii) CUSTOMER is in breach of this AGREEMENT, or (iii) CUSTOMER acts in a manner that CONTINENTAL reasonably believes may harm CONTINENTAL, its other customers, or the SERVICE, or (iv) if required to by any authority.
13.6 If the CUSTOMER materially breaches this AGREEMENT and does not cure such breach within thirty (30) days after receiving notice from CONTINENTAL describing such breach in reasonable detail, CONTINENTAL shall have the right to immediately terminate this AGREEMENT for cause.
13.7 CONTINENTAL can immediately terminate the SERVICE if a change in laws or regulations makes it unlawful, or impractical, in CONTINENTAL’s reasonable judgment to provide the SERVICE, and CONTINENTAL as CUSTOMER’s sole and exclusive remedy, shall reimburse paid fees pro rata.
13.8 CONTINENTAL may immediately terminate this AGREEMENT upon written notice to the CUSTOMER if the CUSTOMER becomes involved in and does not, within 30 days vacate, any bankruptcy, composition with creditors, liquidation (except voluntary liquidation for purpose of reorganization) or controlled administration proceeding.
13.9 For the avoidance of doubt, the Service shall immediately terminate upon the termination of this AGREEMENT.
13.10 Upon termination, CUSTOMER shall return all hardware (not purchased) and cease any use of and SERVICE, and if so requested, promptly return to CONTINENTAL, or certify destruction of, all full or partial copies of the software provided by CONTINENTAL.
13.11 In case of early termination of a licence or the Agreement, fees paid in advance shall not be reimbursed, unless stated otherwise in this Agreement.
14. WARRANTY AND LIABILITY
14.1 In the event of defects in the SINDRI Service, CONTINENTAL shall be liable for material defects and defects of title in accordance with the statutory provisions applicable and as set out in the following provisions. Material Defect means in particular malfunctions and/or errors, which not only insignificantly impair or limit the use of the agreed Services. The remedy measures, which the CUSTOMER can claim under warranty aspects, in particular maintenance and troubleshooting, are conclusively specified in the Service Description.
14.2 Each PARTY represents and warrants that (i) it has the legal power and authority to enter into and perform this AGREEMENT; and (ii) the person executing this AGREEMENT, on its behalf has the legal power and authority to do so, (iii) the Service does not, to CONTI-NENTAL’s knowledge, infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (v) the Service will conform to descriptions as detailed in the service description.
14.3 In the event CONTINENTAL breaches the above warranties, CONTINENTAL shall correct the deficiencies to cause the Service to conform to the above warranties and the terms of the service description. To the extent permitted under applicable law CONTINENTAL hereby disclaims all other warranties, whether express or implied, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose.
14.4 In no event shall CONTINENTAL be liable for any interception or interruption of any communications through the internet, wireless or cellular network coverage or for unavailability of or interruption or delay in telecommunications or for third parties other than those acting as CONTINENTAL’s agents including subcontractors.
14.5 The CUSTOMER shall present all claims in connection with this AGREEMENT without undue delay but not later than 1 (one) month after the incident giving raise to the claim has occurred.
14.6 In no event shall CONTINENTAL be liable to the CUSTOMER, or to any third party, for any consequential, indirect, special, incidental or exemplary damages, whether foreseeable or unforeseeable (including, but not limited to, damages for loss of data, goodwill, profits, investments, use of money or use of facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), even if CONTINENTAL has been advised of the possibility of such damages, arising out of (a) the performance or non-performance of this AGREEMENT, use of the Service, or (b) any claim, cause of action, breach of contract or any express or implied warranty, under this AGREEMENT or otherwise, misrepresentation, negligence, strict liability, or other tort. For clarity, CUSTOMER bears the sole responsibility for use and testing of its own services created by utilization of or base on the SERVICE.
14.7 CONTINENTAL’s maximum aggregate liability to CUSTOMER for losses or damages suffered in respect of all claims arising in connection with the AGREEMENT shall not exceed the FEES paid for the SERVICE during the last year prior to the occurrence of such claims.
14.8 Nothing in this section shall affect either PARTY’s liability for willful misconduct, gross negligence, personal injury and according to mandatory product liability law.
15. FINAL PROVISIONS
15.1 This Agreement as defined in Section 1.1 constitutes the entire Agreement and understanding of the Parties and supersedes any previous agreement between the Parties relating to the subject matter of this Agreement. If not provided otherwise in the T&Cs, any changes and/or modifications to this Agreement require at least text form (§ 126b BGB, e. g. letter, e-mail) to be valid.
15.2 Should a provision be invalid, unenforceable or become invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected.
15.3 The CUSTOMER agrees that CONTINENTAL may at any time transfer its rights and obligations under this contract in whole or in part (contract transfer) to a company affiliated with CONTINENTAL and/or CONTINENTAL AG, Vahrenwalder Straße 9, D-30165 Hannover, Germany. If such a transfer affects the legitimate interests of the CUSTOMER, the CUSTOMER may terminate the contract for the SINDRI Service without notice on the day the transfer takes effect.
15.4 Any set-off with counterclaims is permissible to the extent that the counterclaims are undisputed or have been finally adjudicated. This also applies to any right of retention.
15.5 The present Agreement is exclusively governed by German law excluding its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. Place of jurisdiction for all disputes under or in connection with this contractual relationship is Frankfurt on the Main.