General Terms and Conditions Valid from September 13th, 2020 A. Scope and contractual partners 1. The following general terms and conditions (hereinafter "Terms and Conditions") apply to orders of exatrek products via the online shop https://www.exatrek.de/shop or other online shops operated by EXA Computing GmbH itself (e.g. on https ://www.amazon.de) and for the use of the Android app (hereinafter “exatrek app”) and the use of the app as a web version (hereinafter “WEBAPP”). 2. “User” hereinafter means any user of exatrek. This applies regardless of whether this is a natural or legal person and regardless of their status as a consumer within the meaning of Section 13 of the German Civil Code (BGB) or an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). 3. The user's contractual partner is EXA Computing GmbH, Münsterstr. 5, 59065Hamm, registered in the commercial register at the Hamm District Court, HRB 9188. You can also reach us at: info@exatrek.de or by telephone at +49 2381 8765596. 4. The user can only transfer the rights and obligations from the contract concluded with EXA Computing GmbH with the written consent of EXA Computing GmbH. 5. If the user orders further exatrek products and/or services, these terms and conditions also apply to the subsequent order unless otherwise agreed with the user. 6. Changes to these General Terms and Conditions can be agreed upon by EXA Computing GmbH and acceptance by the user in accordance with the following provisions, provided that the change does not significantly shift the relationship between performance and consideration to the user's disadvantage. The offer from EXA Computing GmbH is made by communicating the changes to the content in text form (notification of changes). If the user does not respond to EXA Computing GmbH's offer or does not object within six (6) weeks of receipt of the change notification, this constitutes acceptance of the offer with which the changes become effective. The user will be specifically informed of these consequences in the change notification. If the user objects within the deadline, the previous terms and conditions continue to apply. To meet the deadline, it is sufficient to send the declaration of objection in writing on time. B. General Terms and Conditions 1. Subject of exatrek 1.1. Subject of exatrek 1.1.1 exatrek is a system for recording and evaluating machine data for the purpose of fleet management and automatic 1.1.2. The exatrek system from EXA Computing GmbH consists of hardware for data acquisition on mobile machines (hereinafter "hardware") and the exatrek app, available for Android, and as a web version (http://app.exatrek.com), hereinafter "software". Hardware and software together also known as the “exatrek system”. 1.1.1.2. The hardware is connected to the data interfaces of machines and enables data acquisition according to various standards (ISO11783, J1939, OBD, etc.) 1.1.1.3. To use the exatrek hardware, a user account is required, which the user creates on the website communicated to him individually, unless one was created for the user by EXA Computing GmbH. The user downloads the exatrek app onto their device from the corresponding “App Store” or “Play Store” for iOS or Android or can alternatively use the WEBAPP web versions. 1.1.3. The user receives any software updates including the hardware firmware that may be necessary for the software to function properly. The user undertakes to operate the hardware exclusively with the firmware provided by EXA Computing GmbH. Maintenance and repair work on the hardware provided may only be carried out by EXA Computing GmbH. EXA Computing GmbH is authorized to carry out configurations and firmware updates on the hardware via remote maintenance. 1.2. Subject of exatrek WEBAPP exatrek WEBAPP is a web-based software (https://app.exatrek.de) for digital machine administration. exatrek WEBAPP is based on the exatrek system. Machines, attachments and drivers can be created and updated independently. exatrek WEBAPP is constantly being expanded and, in addition to pure machine documentation, also includes other functionalities relating to localization, cost optimization and documentation. No other hardware is required for exatrek WEBAPP than for the exatrek app. 2. Conclusion of contract and creation of a user account 2.1. A user account for using the exatrek software can be created independently of the purchase of the hardware on the website provided to the user, unless one has been created for the user by EXA Computing GmbH. 2.2. To use exatrek WEBAPP, a user account with access to fleet management on http://app.exatrek.de can be provided by EXA Computing GmbH upon request. Additional costs may apply for the use of exatrek WEBAPP or APP depending on the scope of functions. 2.3. Subject to a separate regulation, the contract between the user and EXA Computing GmbH is concluded upon receipt of an order confirmation or invoice and at the latest when EXA Computing GmbH provides the service (activation of the operating account). You can view the terms and conditions at any time at http://exatrek.de/agb. 2.4. EXA Computing GmbH will accept or reject the user's contract offer within five (5) days. Otherwise, the user has the right to withdraw. This does not apply if the user has linked his contract offer to a shorter period. 3. Delivery and product availability 3.1. The hardware is shipped by post. EXA Computing GmbH bears the shipping risk. 3.2. The software is downloaded by the user directly from the corresponding “App Store” or “Play Store” for iOS or Android for their respective mobile device. 3.3. If the hardware ordered by the user is temporarily not available, EXA Computing GmbH will inform you immediately. If delivery is delayed by more than fourteen (14) days, the user has an extraordinary right of withdrawal. 4. Costs 4.1. To use the exatrek system in the extended version, you must purchase a license for a fee. The license can be purchased for different periods of time. Various people and/or companies are offered a free trial period on a promotional basis. 4.1.1. Costs: By purchasing the license, the user receives the non-exclusive, non-transferable and non-sublicensable right to use the software for a limited period of time. The fee for the license must be paid in advance. The total amount communicated to the user individually in the invoice applies. The invoice amounts must be paid to the specified account no later than fourteen (14) working days after receipt of the invoice. The user will be in default even without a reminder if the payment owed is not received by EXA Computing GmbH within fourteen (14) days of receipt of the invoice. If the SEPA direct debit was chosen as a means of payment, EXA Computing GmbH will inform the user of the amount and time of collection at least two (2) days before the debit (reduction of the deadline for advance information on the SEPA direct debit). The user must ensure that the specified bank account has sufficient funds. Bank fees for return debits for which the user is responsible will be charged to the user. 4.1.2. The costs for the extended version of the app and therefore also the WEBAPP depend on the term, the number of licenses and the range of functions selected. 4.2. If the user defaults on payment, EXA Computing GmbH is entitled to block the user account(s). In this case, the user remains obliged to continue to pay the agreed costs in full. 4.3. The user can only offset payment claims of EXA Computing GmbH with undisputed claims that are ready for a decision in court proceedings or that have been legally established. The customer only has a right of retention due to claims arising from the same contractual relationship. 5. Warranty and Guarantee 5.1. The warranty law of the German Civil Code (BGB) applies to exatrek. 5.2. If the user complains about a hardware error, EXA Computing GmbH checks its functionality. If the hardware is defective, replacement hardware will be sent to the user. The user is obliged to immediately return the defective hardware to EXA Computing GmbH (Münsterstr. 5, 59065Hamm) at his own expense. If the hardware is functional when it is delivered for inspection or if the error is due to the user's fault, EXA Computing GmbH is entitled to invoice the user for the costs incurred for the inspection/repair. EXA Computing GmbH is entitled to replace the hardware provided to the user with at least equivalent hardware if technical or operational reasons make this necessary. 6. Installation and Liability 6.1. The installation of the hardware is solely the responsibility of the user. Before ordering, he must independently clarify with the manufacturer of his machine whether the installation of the hardware affects the respective manufacturer's guarantee and/or warranty. 6.2. The user's claims for damages are excluded. Excluded from this are claims for damages by the user resulting from injury to life, body, health or from the violation of essential contractual obligations (cardinal obligations) as well as liability for other damages resulting from an intentional or grossly negligent breach of duty by EXA Computing GmbH, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract. 6.3. In the event of a breach of essential contractual obligations (cardinal obligations), EXA Computing GmbH is only liable for the contract-typical, foreseeable damage if this was caused simply through negligence, unless it concerns claims for damages by the user due to injury to life, body or health . 6.4. The restrictions in accordance with the above points also apply in favor of the legal representatives and vicarious agents of EXA Computing GmbH if claims are asserted directly against them. 6.5. The provisions of the Product Liability Act (ProdHaftG) and the Federal Data Protection Act (BDSG) remain unaffected. 6.6. The user must carry out a compatibility check before ordering. EXA Computing GmbH expressly points out that despite taking the greatest possible care, not all compatibility questions can be clarified before ordering. This results, among other things, from the large number of different machine models, individual features and manufacturers. EXA Computing GmbH can only guarantee the compatibility of the hardware if the corresponding compatibility has been expressly informed in writing. EXA Computing GmbH assumes no liability for errors and/or damage that are due to a lack of usability. 6.7. The user will endeavor to carry out a compatibility check with his machine as well as a test of the functionality of the exatrek app immediately after receiving the hardware and will immediately notify EXA Computing GmbH of any errors and/or malfunctions that he can detect. 6.8. EXA Computing GmbH reserves the right to interrupt access to the software and the unrestricted use of the hardware as long as and to the extent that this is necessary for compelling reasons, for example in the event of necessary maintenance work on servers or programs or the necessary infrastructure, in the event of unauthorized attacks on data or computer, is necessary to eliminate unforeseen security gaps or other serious malfunctions. These short-term restrictions do not give rise to any liability or warranty claims on the part of the user. 6.9. An unjustified request by the user to rectify a defect constitutes a culpable breach of contract requiring compensation if the user has recognized or negligently failed to recognize that there is no defect but that the cause of the phenomenon behind which he suspects a defect lies within his own area of responsibility. 6.10. If the purchase is a commercial transaction for both parties, the buyer (user) must inspect the goods immediately after delivery by the seller, as far as this is possible in the normal course of business, and, if a defect is discovered, report it to the seller (EXA Computing GmbH ) to report immediately (§ 377 HGB).7. Cancellation policy The user has the right to revoke his contractual declaration within thirty (30) days. RIGHT OF WITHDRAWAL You have the right to withdraw from this contract within thirty days without giving any reason. The cancellation period is thirty days from the day the contract is concluded. In order to exercise your right of withdrawal, you must inform us (EXA Computing GmbH, Münsterstr. 5, 59065 Hamm, email: info@exatrek.de, telephone number: +49 2381 8765596.) by means of a clear declaration (e.g. with the letter sent by post, fax or e-mail) about your decision to revoke this contract. You can use the sample cancellation form below, although this is not mandatory. In order to meet the cancellation period, it is sufficient that you send the notification of your exercise of the right of cancellation before the cancellation period expires. CONSEQUENCES OF CANCELLATION If you cancel this contract, we will refund to you all payments received from you, including delivery costs (except for any additional costs arising from you choosing a method of delivery other than the low-cost standard delivery offered by us have), immediately and at the latest within fourteen days from the day on which we received notification of your cancellation of this contract. For this repayment we use the same payment method that you used for the original transaction, unless something different was expressly agreed with you; under no circumstances will you be charged any fees for this repayment. If you have requested that the services begin during the cancellation period, you must pay us an appropriate amount corresponding to the proportion of the services already provided up to the point at which you inform us of your exercise of the right of cancellation with regard to this contract Comparison with the overall scope of services provided for in the contract. END OF REVOCATION SAMPLE CANCELLATION FORM (If you want to cancel the contract, please fill out this form and send it back.) To EXA Computing GmbH Münsterstrasse 5 59065 Hamm info@exatrek.de REVOCATION I/we () hereby revoke the contract concluded by me/us () for the purchase of the following goods ()/the provision of the following services (): Ordered on ()/received on (): Name of consumer(s): Address of the consumer(s): Signature of the consumer(s) (only for paper notification): Date (*): Delete what is not applicable. C. General final provisions 1. The law of the Federal Republic of Germany applies exclusively, excluding private international law (IPR) and the UN Convention on Contracts for the International Sale of Goods (CISG). This also applies to international deliveries. 2. To the extent permitted by law, the exclusive place of jurisdiction for all disputes is the headquarters of EXA Computing GmbH.
