Terms and Conditions
as at 04-2018
Sec. 1 Object of the Contract
- ADANA is a brand of Schloz Wöllenstein Services GmbH & Co. KG (hereinafter “ADANA”) under which is operated an online quotation service for the calculation of quotations for services including a technical hotline (hereinafter “online quotation service”). The scope of the packages available for use is governed by the user agreement.
- System development, content management, hosting, maintenance and support shall be executed by ADANA and its partner companies.
- Provision shall generally take place at all client company sites covered by a valid Daimler AG service contract. Any use in business or client company locations not covered by a Daimler AG service contract without written approval by ADANA is expressly prohibited. Breaches can lead to termination of the contract without notice.
- Location-specific booking of individual packages is not possible. The object of the contract is always the relevant total number of all client company locations/places of business listed by the competent national organisation (MPC) and having a Daimler AG service contract.
- In the event that individual locations in justified exceptional cases are generally not charged or that locations not listed by the MPC are charged, this shall be declared and justified in writing in special agreements within the user agreement.
Sec. 2 Trial Access
- ADANA grants interested parties (hereinafter also Client) covered by a valid Daimler AG service contract the option of accessing the online quotation service at no charge as a trial for an individually agreed period of time.
- The full online quotation service can be used during the trial access period. These General Terms and Conditions shall therefore apply as appropriate.
- Should a contract not be concluded either prior to the end of the trial access period or upon its expiry, the trial access shall be automatically terminated.
Sec. 3 Duration and Termination of the Contract
- The starting date of the contracts is governed by the user agreement. Contracts are concluded for an indefinite period unless specifically agreed otherwise. The user agreement will only be effective with a valid Contract for Outsourced Data Processing, see Sec. 10 confidentiality and data protection.
- Contracts may be cancelled to the end of the month at any point. Notice of termination must be made in writing and may be sent electronically to firstname.lastname@example.org or by standard post to Schloz Wöllenstein Services GmbH & Co. KG, Werner-Seelenbinder-Strasse 11b, 09120 Chemnitz, Germany. This shall apply both for termination of the entire online quotation service as well as for termination of individual packages.
- ADANA reserves the right to modify the service in part or in full, or to discontinue it temporarily or permanently without prior notice. If the service is terminated in its entirety, the Client shall be reimbursed for any excess usage fees paid.
- When the termination enters into force, the Client’s access to the online quotation service shall be blocked. At the same time, all stored data shall be deleted. Evaluations relying upon the existing database shall be suspended from this point forward.
- The right of both parties to terminate the agreement without notice for good cause shall remain unaffected. For ADANA, such good cause shall be found in particular if the Client uses the information obtained through the online quotation service for illegal purposes or passes the information to others in violation of confidentiality obligations.
Sec. 4 Costs and Terms of Payment
- The costs for the use of the online quotation service are based on the respective price list currently in force. The Client may request the price list from ADANA at any time. Changes to the price list shall be communicated to the Client in writing at least four weeks prior to their entry into force.
- Monthly usage fees shall be invoiced annually in advance. If the contract commences during an ongoing calendar year, the fee for the remaining months of the calendar year shall be due upon conclusion of the contract. Usage fees for the first month of the contract shall be calculated on a daily basis.
- Calculations for quotations requiring additional labour (non-standard vehicle-specific upgrades) are not included in the package price and shall be invoiced individually under a separate agreement.
- Service package changes (upgrades or downgrades) may only be effected by prior agreement with ADANA in the form of a written contract amendment.
- In the event that the Client, after receipt of the invoice, finds evidence of discrepancies between the locations shown in the invoice and the locations actually in operation, these should be brought to the attention of ADANA within 14 days of receipt of the invoice.
- Invoices are due and payable without deduction 14 days following receipt of the invoice. Should the Client fall behind in payments, the outstanding amount shall be charged an interest rate of 9 percentage points above the applicable base interest rate in effect. The assertion of additional rights shall remain unaffected.
- In the event that the Client falls more than 30 days into arrears, ADANA is entitled to terminate the contract for good cause.
- The Client shall be entitled to offset claims only with written consent or in the case of legally enforceable and undisputed counter-claims.
Sec. 5 Content and Scope of the online quotation service
- On the basis of manufacturer information and experiences with vehicle service operations, ADANA facilitates the preparation of calculations for quotations on vehicles in the selected packages and provides sales and installation support through the technical hotline.
- For these purposes, ADANA makes use of the manufacturers’ product, price, labour rate and parts information required for the quotation. In cases where standardised manufacturer’s labour costs are not provided, the quotation is based upon statistical evaluations of the installation time needed.
- Vehicle parts from third-party providers such as Webasto, Twintec, etc. are entered using the non-binding manufacturers’ suggested retail prices (MSRP). Different trade margins, special discounts and price mark-ups for individual customers cannot be taken into consideration in this process.
- Taking into consideration all the above information and following determination of an individual billing rate and individual client-specific discounts and mark-ups, the online quotation service provides a non-binding quotation. This information is made available to the Client via Internet by means of the online quotation service.
- Provision of Internet access is not an element of the contractual relationship between the Client and ADANA.
Sec. 6 System Requirements
To be able to utilise the online quotation service, the Client must have access to the following: an Internet-capable terminal with a minimum screen resolution of 1024x768 pixels, unrestricted access to the Internet with at least 2 Mb bandwidth, and an individual email address for system administration, in addition to one of the following Internet browsers:
- Internet Explorer
no less recent than the penultimate version.
Sec. 7 ADANA Client Usage
- A valid user agreement or trial access authorisation is required for access to the online quotation service. A user agreement, a contract extension covering additional packages or a trial authorisation may be requested at www.adana.de or email@example.com at any time.
- ADANA will enrol the Client in the online quotation service. In addition, ADANA shall grant access to the company administrator named in the user agreement or trial access form and activate the selected package. The company administrator will then receive an email containing the login data. The administrator is then required to log in to www.adana.de by entering the assigned user ID and password. The Client shall be responsible for the confidentiality of user ID and passwords.
- It is essential that the company administrator immediately specify and regularly update the individual billing rates, discounts and mark-ups in order for the quotations to be calculated correctly.
- The company administrator is authorised to grant user access to other employees of the client company. For this purpose, each user must be issued with a separate login. It is expressly prohibited to grant group user access.
- The Client may use the quotation only for appropriate purposes. In particular, the Client shall maintain the confidentiality of the user ID and passwords enabling access to the ADANA online quotation service, refrain from sharing these with others or tolerating or enabling access by others, take the steps necessary to ensure confidentiality, and inform ADANA in the event of any misuse or loss or suspicion of misuse or loss of the login information.
- The Client selects the appropriate offering for its end customer in the online quotation service based on the end customer’s preferences and the available vehicle data and subsequently receives a non-binding quotation.
- Within the scope of company business, the Client is entitled to make use of the quotation received from ADANA to generate its own offers for its end customers and, for this purpose, to copy this quotation into the terminal’s memory. The Client is entitled to make a printout for informational purposes. The Client may make internal use of the quotation and may share it with the end customer. This authorisation is non-transferable.
- The data and information made available through the online quotation service are the intellectual property of ADANA and the manufacturers. Accordingly, the Client acquires no right to divulge the accessed data. In particular, the Client is not authorised to copy, modify, distribute, reprint or permanently store the accessed or printed data, in whole or in part, especially for the purpose of creating a database. With regard to the Client, ADANA exclusively retains all rights to the data being made available, especially copyrights, exploitation rights, usage rights, etc.
Sec. 8 Availability
- The average annual availability of the online quotation service is specified as 98.3% (uptime). In the event that this availability is not achieved or that the system is inaccessible for more than three consecutive days, the Client is entitled to terminate the contract for good cause.
- Periods during which data backups, system maintenance or program updates are being carried out shall not be considered downtime. ADANA undertakes to minimise as far as possible any disruption resulting from such activity.
- In accordance with Paragraph 2, ADANA shall be further entitled, to the extent required, to carry out such work during business hours. This may result in disruption to data access, although ADANA will seek to keep such disruption as minimal as possible.
- ADANA shall be released from any obligation to perform services under this contract if and to the extent that the failure to perform services is due either to technical disruptions not within ADANA’s sphere of responsibility or to a force majeure situation (especially water leaks or floods, power outages and interruptions, or damage to data-carrying lines) following the conclusion of the contract. Should service delivery become permanently impossible, ADANA shall be released from its contractual obligations. Claims for damages on the part of the Client are fundamentally excluded in such cases.
Sec. 9 Evaluation, Storage and Use of Data
The Client may, upon request, receive an evaluation of the use of the system in its company. In all cases, an evaluation shall take place in accordance with the legal provisions currently in force.
Sec. 10 Confidentiality and data Protection
- The contracting parties undertake to maintain the confidentiality of all information regarding the affairs of the other party made available in the context of the agreement or in the course of cooperation that has been marked as confidential, that has been designated as confidential when transmitted orally; or that is recognisable as confidential in the view of an objective observer, as well as business and operational secrets, especially but not limited to information, data, ideas, concepts and business models. The contracting parties are prohibited from utilising confidential information for any purpose other than the fulfilment of tasks included under the agreement, to share such information with third parties, or to make any other use of it.
- Both parties undertake to impose the confidentiality obligation on all employees and/or third parties having access to the above-mentioned business transactions and processes.
- The confidentiality obligation shall not apply to information
- already known to the other party at the time the contract was concluded,
- which had already been made public at the time it was disclosed by the disclosing party, without such public release having originated in a breach of confidentiality by the other party,
- the disclosure of which has been expressly authorised in writing by the other party.
- The rights and obligations under (1) and (2) shall not be affected by a termination of this contract.
- ADANA undertakes to grant access to the Client’s confidential information solely to those of its employees who are tasked with carrying out the services in the context of this contract.
- The client assumes the obligation to independently and promptly deactivate user IDs known to its departing employees or other employees who for other reasons should no longer be granted access to the online quotation service.
- ADANA undertakes to comply with the provisions of the EU General Data Protection Regulation (EU GDPR) and with other applicable provisions of data protection regulations within the data processing. This applies, in particular, with the processing of personal data.
- The detailed provisions to process data are stated in a separate agreement between the contracting parties.
- The client will receive the Contract for Outsourced Data Processing with delivery of the user agreement for the online quotation service.
Sec. 11 IT Security
- ADANA undertakes to immediately and effectively protect in accordance with the state of the technological art all client information and data against access by unauthorised third parties, especially against misappropriation, loss, manipulation, damage or reproduction of any kind.
- In particular, ADANA shall protect the systems under its control against unauthorised perusal, storage, alteration and other unauthorised access or attack of any kind whatsoever by employees or other third parties. To this end, ADANA shall take suitable measures in accordance with the state of the proven technological art and in the necessary scope, in particular as required to provide protection against viruses and other malware and program routines.
- ADANA shall be responsible for the nature and scope of backups and for the archiving of evaluations.
Sec. 12 Consequences of Breaches
- ADANA is not obliged nor able to examine in detail the legality and correctness of the content and parameters provided by users, nor to monitor such content or investigate circumstances indicative of illegal activity. ADANA shall, however, undertake random content checks, reserving the right to examine and remove any content.
- Should it suspect fraudulent use or other breaches of the contract, ADANA reserves the right to investigate such matters, to take appropriate precautions and, in the event of a justified suspicion, to block the Client’s access to the online quotation service at least until the Client allays such suspicion and/or, in the event of severe breaches of the contractual relationship, to terminate the contract without notice. If the Client is able to allay such suspicion, access shall be unblocked. The Client shall notify ADANA promptly of any evidence of misuse of the online quotation service.
- In the event of a culpable breach of these General Terms and Conditions, the user shall be liable to compensate ADANA for all direct and indirect damages resulting from such breach, including financial loss. In the event of a breach of these General Terms and Conditions, the user shall indemnify ADANA against any third-party claims asserted against ADANA, its legal representatives and/or agents as a result of such breach. All other rights are reserved.
Sec. 13 Rights Arising from Defects / Liability
- ADANA shall not be liable for ensuring that the data made available to the Client via the online quotation service will lead to a desired result. Moreover, to the extent that the underlying information is based on information provided by manufacturers, ADANA shall only be liable for its correct and complete transfer into the online quotation service. In addition, ADANA’s liability for direct and indirect damages in connection with the quotation and the data from the online quotation service contained in it is excluded.
- Claims by the Client for compensation for damages are excluded. Excepted from the above are claims by the Client for compensation for loss of life, physical injury, or injury to health, or arising from the breach of material contractual obligations (cardinal obligations) as well as liability for other damages arising from a wilful or grossly negligent breach of obligation by ADANA, its legal representatives or vicarious agents. Material contractual obligations are those the fulfilment of which is essential to achieving the objective of the contract.
- In the event of any breach of material contractual obligations, ADANA shall be solely liable for foreseeable damages typical of the contract if this is caused by simple negligence unless it involves claims by the Client for compensation for loss of life, physical injury, or injury to health. Unless otherwise agreed, claims for lost profits are excluded.
- The limitations in Paragraphs 2 and 3 shall also apply to the benefit of ADANA’s legal representatives and vicarious agents if claims are directly asserted against them.
- The limitations of liability arising from Paragraphs 2 and 3 shall not apply to the extent that ADANA has fraudulently concealed a defect or has assumed a warranty for the properties of the item. The same shall apply to the extent that ADANA and the Client have concluded an agreement regarding the properties of the item. The provisions of the Product Liability Act [Produkthaftungsgesetz] shall remain unaffected.
- Moreover, ADANA shall not be liable for technical disruptions the cause of which does not lie within its sphere of responsibility, nor for losses resulting from force majeure. The same shall apply for any losses resulting from faulty subsequent processing of the information retrieved by the Client or from its improper use.
Sec. 14 Copyright and Related Rights
- Where a party makes its own content available in the context of the online quotation service, this content is fundamentally protected under copyright and ancillary copyright law.
- Reproduction, public communication or other utilisation or exploitation of such protected content is generally not permitted without the consent of the respective copyright holder. To the extent that the law does not provide for exceptions, the only permissible use is for personal, non-commercial purposes within the intended scope of the online quotation service.
Sec. 15 Other Provisions
- The law of the Federal Republic of Germany shall apply exclusively. The applicability of the UN Sales Convention is expressly excluded.
- The exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship is Chemnitz, to the extent that the Client is an entrepreneur.
- Any amendments or additions to these General Terms and Conditions shall only be effective in writing. Amendments or additions with respect to the object of the contract must likewise be made in writing and shall be signed by both parties to the contract. This shall also apply to any abrogation of the written form requirement. Any oral or electronic collateral agreements to this contract shall be null and void.
- Should individual provisions of the contractual relationship or of the General Terms and Conditions be or become wholly or partially ineffective or invalid, this shall not affect the validity of the remaining provisions of the General Terms and Conditions. The parties undertake to replace the ineffective or invalid provision with a valid provision most closely approximating the intended commercial purpose of the original provision. The same shall also apply in the event of any gap in the agreement.