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1. Scope, subject matter of the contract
1.1 The subject of these general terms and conditions (hereinafter: “terms and conditions”) is the delivery of charging systems for electric vehicles consisting of charging stations with accessories (hereinafter: hardware) and an (optional) e-mobility software as a service solution (hereinafter: SaaS) by ĢƵ GmbH, Landsberger Str. 318a, 80687 Munich (hereinafter: ĢƵ) to entrepreneurs in the sense of § 14 BGB, legal entities under public law or special funds under public law (hereinafter: “customers”). The charging system is modular and can be operated analogously (without SaaS) or digitally (with SaaS).
1.2 These terms and conditions exclusively govern the legal relationship between ĢƵ and the customer. They therefore also apply to all future business relationships, even if they are not expressly agreed again. ĢƵ does not recognize any terms and conditions of the customer that conflict with or deviate from these terms and conditions, unless ĢƵ has expressly agreed to their validity in writing. Individual agreements made between ĢƵ and the customer in individual cases (including ancillary agreements, additions and changes) take precedence over these terms and conditions.
1.3 The provisions in this Part A of the terms and conditions apply to all ĢƵ services covered by Section 1. For the delivery of hardware by ĢƵ to the customer, Part B of the terms and conditions applies in addition to Part A. For the transfer of SaaS by ĢƵ to the customer, Part C of the terms and conditions applies in addition to Part A.
2. Conclusion of contract
2.1 ĢƵ offers are subject to change.
2.2 Customer orders are considered a binding contract offer. Unless otherwise stated in the order, ĢƵ is entitled to accept the contract offer within 14 days of receipt of it.
2.3 A contract between ĢƵ and the customer for the delivery of a charging system (hereinafter: individual contract) is only concluded upon written order confirmation by ĢƵ. The specific number of charging systems, accessories and SaaS licenses ordered and, if applicable, further details of the specific scope of services and price conditions are set out in the order confirmation from ĢƵ.
2.4 The order confirmation can be declared either in writing or by delivery of the goods to the customer.
3. Prices
3.1 The prices and fees agreed in the individual contract apply.
3.2 Prices are exclusive of statutory sales tax, where applicable.
3.3 When purchasing by mail order, the customer bears the costs of transport ex warehouse and the costs of any transport insurance requested by the customer.
4. Subcontractor
ĢƵ can also provide the contractually owed services through a subcontractor. The provisions of the order processing contract must be complied with if personal data is processed.
5th Customer name as a reference
ĢƵ is entitled to name the customer as a reference on its website and in other media for advertising purposes, provided that the data protection requirements for this are met. The customer can object to the name as a reference at any time.
6. Data protection
6.1 Insofar as ĢƵ can access personal data of the customer or from its area, it acts exclusively as an order processor. It will therefore only process and use this data to execute the contract. ĢƵ will comply with the customer's instructions for handling this data. The customer bears any adverse consequences of such instructions for the execution of the contract. The customer will separately agree with ĢƵ on the details of how ĢƵ will handle the customer's data in accordance with data protection requirements. The customer remains responsible both in general in terms of contract and in terms of data protection law. If the customer processes personal data in connection with the contractual relationship, he guarantees that he is entitled to do so in accordance with the applicable data protection regulations and, in the event of a breach, releases ĢƵ from third-party claims.
6.2 The customer is responsible for the processing of personal data vis-à-vis the data subject, unless ĢƵ is responsible for claims made by the data subject due to a breach of duty attributable to him or her. The customer will duly review, process and answer any inquiries, requests and claims made by the person concerned. This also applies if the person concerned makes use of ĢƵ. ĢƵ will provide the customer with appropriate support in fulfilling its obligations.
7. Final provisions
7.1 The customer may transfer claims against ĢƵ to third parties only after written consent from ĢƵ.
7.2 The customer may only offset undisputed or legally established claims. The customer can only assert a right of retention due to counterclaims arising from the respective contractual relationship.
7.3 Amendments and additions to these terms and conditions and the underlying individual contract must be made in writing. This also applies to the amendment or repeal of this clause.
7.4 German law applies to these terms and conditions.
7.5 The place of fulfilment is Munich/Federal Republic of Germany. The exclusive place of jurisdiction for all legal disputes arising from and in connection with these terms and conditions and the underlying contractual relationship is Munich/Federal Republic of Germany. However, ĢƵ is also entitled to sue at the customer's general place of jurisdiction.
7.6 Should individual provisions of these terms and conditions be or become invalid in whole or in part, this shall not affect the effectiveness of the remaining provisions. In this case, the parties already agree that the invalid provision will be replaced by a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any regulatory gaps.
8. Liability
8.1 ĢƵ is fully liable for intent, gross negligence and culpable injury to life, body or health.
8.2 Notwithstanding cases of unlimited liability in accordance with Section 8.1, ĢƵ is liable for slightly negligent breach of duty only in the event of a breach of essential contractual obligations, i.e. obligations whose fulfilment makes the proper execution of the contract possible in the first place or whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the other party may regularly rely, but limited to the contract-typical damage foreseeable at the time of conclusion of the contract.
8.3 The above limitations of liability do not apply to liability under the Product Liability Act, the mandatory provisions of data protection law and under a warranty provided in writing by ĢƵ.
8.4 Liability for slight negligence is limited to a maximum of 1,000,000.00 (one million) euros. This corresponds to the amount covered by ĢƵ's business liability insurance. Should the damage potential be higher in individual cases, the customer will inform ĢƵ of this in text form.
8.5 ĢƵ owes due diligence as usual in the industry. When determining whether ĢƵ is at fault, it should be considered that software cannot be created without technical errors.
8.6 ĢƵ is not liable for loss of data insofar as the damage is due to the customer's failure to carry out data backups and thus ensure that lost data can be restored with reasonable effort.
8.7 Claims due to a slightly negligent breach of an obligation that is not a cardinal obligation and does not fall under clauses 8.1 and 8.3 expire one year from the start of the statutory limitation period.
8.8 The above limitations of liability in Section 8 also apply to the personal liability of employees, representatives and organs of ĢƵ.
1. Subject matter of the contract
1.1 The subject of the contract is the sale and delivery of charging systems for electric vehicles consisting of charging stations and, if applicable, accessories such as connection cables, stands, etc. (hereinafter: hardware). As a so-called charge point operator, i.e. charging station operator (hereinafter: CPO), the customer is responsible for installing, commissioning, properly operating and maintaining the operational readiness of the charging systems.
1.2 ĢƵ charging systems can be used both in analog and digital mode. Using the charging systems in analog mode therefore does not require ordering the SaaS.
1.3 If ĢƵ supplies the customer with charging stations in which mobile phone SIM cards are installed to connect the customer's charging stations to the SaaS and/or to supply updates from ĢƵ, the parties agree that these mobile SIM cards remain the property of ĢƵ and can be deactivated by ĢƵ at any time after the SaaS services have ended (Section 1.1 Part C of the terms and conditions).
2. Duties and Responsibilities of the Customer
2.1 The customer or, insofar as the customer is a reseller, his end customer is, as CPO, plant manager and operator within the meaning of § 2 No. 12 LSV. The customer or end customer makes the charging infrastructure available to the user as an e-mobility provider (hereinafter: EMP) and bills the user for use in his own name and for his own account or uses a third party as an EMP for this purpose.
2.2 As CPO, the customer or end customer is responsible for the proper installation, operation and monitoring of the charging systems through the use of qualified persons. In addition, reference is made to the applicable legal provisions.
3. Delivery, transfer of risk, delivery dates, delivery delay
3.1 Unless otherwise expressly agreed, ĢƵ will deliver the hardware by shipping it to the destination desired by the customer. Unless otherwise agreed, ĢƵ is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
3.2 The risk of accidental loss, accidental deterioration and delayed delivery of the goods is transferred to the customer as soon as the goods are delivered to the freight forwarder, the carrier or the person or institution otherwise designated to carry out the shipment.
3.3 Delivery dates are only binding if they have been confirmed in writing by ĢƵ and the customer has provided all information and documents required for delivery and has made any agreed down payments in good time. Agreed delivery dates start at the earliest on the date of the written order confirmation. If orders are changed and/or supplemented later, the delivery periods are extended accordingly. The delivery dates confirmed by ĢƵ are shipping dates. If non-compliance with the delivery time is due to force majeure, operational disruption, strikes, industrial disputes, natural disasters, pandemics, epidemics or other events beyond ĢƵ's control, the delivery time is extended accordingly. The end and start of such circumstances will be immediately notified to the customer. In all other respects, the occurrence of a delay in delivery is governed by the statutory provisions.
3.4 Insofar as ĢƵ is liable for a delay in delivery, liability due to the delay damage for each completed week of delay is limited in amount to 0.5%, but not more than 5% of the total order amount.
4. Retention of title
The delivered goods remain the property of ĢƵ until full payment of the purchase price.
5. Warranty, duty to inspect and give notice of defects
5.1 Technical data, specifications and performance information in public statements, in particular in advertising material, are not quality information. The agreed quality of the hardware results from the individual contract, unless otherwise agreed in writing.
5.2 The hardware delivered by ĢƵ must be free from defects upon transfer of risk. Defects are deviations from the service description, provided that they do not only insignificantly reduce the value or suitability for the usual use described there.
5.3 The customer is obliged to examine the hardware delivered by ĢƵ immediately after delivery (§ 377 HGB).
5.4 The customer must report obvious defects to ĢƵ in text form immediately, but no later than ten days after handing over the hardware. Hidden defects must be reported to ĢƵ immediately, but no later than ten days after their discovery. If timely notification is not provided, the goods are considered approved.
5.5 In the notification of defects, which is made in writing or in text form, the customer will provide information on the detailed circumstances of the
The occurrence of the defect, its effects and — as far as is known — possible causes. He will do his best to assist ĢƵ in finding and resolving the cause of the defect. He will provide necessary cooperation, in particular provision of information and supplies, in good time and free of charge for ĢƵ.
5.6 There is no defect if the customer has modified the goods without the prior written consent of ĢƵ or connected them with other hardware or software components in violation of the system requirements. Use of the goods in accordance with the contract also does not constitute a defect.
5.7 Customer warranty claims due to material or legal defects expire one year from the start of the statutory limitation period. For claims for damages and expenses made by the customer, the provisions in Section 8 Part A of the terms and conditions apply in addition.
1. Subject matter of the contract
1.1 The subject of the SaaS contract is the granting of the use of the “ĢƵ Connect” and/or “ĢƵ Track” software (hereinafter individually or jointly: SaaS) in the customer's company via the Internet, including provision of storage space for the intended use of the functions of the software application on servers operated by or for ĢƵ for the purpose of digitally operating the ĢƵ charging systems by the customer.
1.2 The SaaS can only be used in combination with chargeX GmbH charging stations. The prerequisite for using the SaaS is therefore a proper connection to the ĢƵ charging stations.
2. ĢƵ services, SaaS usage and storage space
2.1 ĢƵ grants the customer the use of the latest version of the SaaS for the agreed number of authorized users via the Internet via access through a browser.
2.2 ĢƵ guarantees the functionality and availability of the SaaS for the duration of the contractual relationship and will maintain it in a condition suitable for use in accordance with the contract.
2.3 The range of functions of the SaaS and the operating conditions are set out in the user documentation. The user documentation can be viewed in electronic form.
2.4 ĢƵ can update and further develop the SaaS at any time and, in particular, adapt it as a result of a change in legal situation, technical developments or to improve IT security. ĢƵ will take appropriate account of the customer's legitimate interests and inform the customer of necessary updates in good time. In the event of a significant impairment of the customer's legitimate interests, the customer has a special right of termination.
2.5 ĢƵ does not owe an adjustment to the customer's individual needs or IT environment, unless the parties have agreed otherwise.
2.6 ĢƵ will regularly have maintenance carried out on the SaaS and will inform the customer of this in good time. Maintenance is carried out regularly outside the customer's normal business hours, unless maintenance must be carried out at another time due to compelling reasons.
2.7 ĢƵ will have state of the art measures taken to protect the data. However, ĢƵ has no custody or custody obligations with regard to the data. The customer is responsible for adequately backing up the data.
2.8 The customer remains the owner of the data stored on the servers operated by or for ĢƵ and can request this in a standard format at any time.
2.9 Other ĢƵ services can be agreed in writing at any time, in particular training on SaaS. Such further services are to be paid separately in accordance with ĢƵ's generally applicable prices at the time of the order.
3. Scope and rights of use
3.1 The SaaS is not physically transferred to the customer.
3.2 The customer receives the non-exclusive, non-transferable right limited to the duration of the contract and to the territory of the Federal Republic of Germany to use the SaaS via access via a browser in accordance with the following regulations on the most recent version of the SaaS.
3.3 The customer may only use the SaaS as part of his own business activity by his own personnel for the digital operation of the ĢƵ charging systems. The customer is not allowed to use the SaaS any further. In particular, he is not permitted to sub-license the SaaS for a fee or free of charge or otherwise make it available to third parties for use, publicly reproduce or make available, translate, decompile and reverse engineer the SaaS.
4th support
ĢƵ is setting up a support service for customers for inquiries about SaaS features. Requests can be made at the times specified in the SaaS via the telephone number provided there or by e-mail. Requests are processed in the order in which they are received.
5. Service levels; troubleshooting
5.1 ĢƵ guarantees a total availability of services of at least 99.5% per month at the transfer point. The transfer point is the router outlet of the data center operating the SaaS.
5.2 Availability means the customer's ability to use all main SaaS functions. Maintenance times and periods of malfunction in compliance with the resolution time are considered to be times of availability of the SaaS. Periods of minor disruptions are not taken into account when calculating availability. ĢƵ's measurement instruments in the data center are decisive for proving availability.
5.3 The customer must report faults immediately to the contact details specified in Section 4. Fault reporting and repair is guaranteed Monday to Friday (excluding national holidays) between 9:00 a.m. and 6:00 p.m. (service hours).
5.4 Serious faults (it is not possible to use the SaaS as a whole or a main function of the SaaS) within 48 hours of receipt of the notification of the fault — provided that the report is made within service hours — (resolution time). The repair times only expire during the service hours mentioned above. If it is foreseeable that it will not be possible to rectify the fault within this period of time, he will immediately inform the customer and inform the customer that the time period is expected to be exceeded.
5.5 Other significant faults (main or ancillary functions of the software are disrupted but can be used; or other not insignificant faults) will be remedied within 96 hours within service hours at the latest (resolution time).
5.6 A serious or other significant malfunction can also be remedied by ĢƵ showing the customer how to restore the usability of the SaaS (so-called workaround), insofar as this is reasonable for the customer, taking into account the interests of both parties. In this case, the resolution times are considered met as soon as the possibility of a workaround has been shown, provided that the underlying fault is permanently resolved as part of the next SaaS update.
5.7 The elimination of minor faults is at ĢƵ's reasonable discretion (Section 315 BGB).
5.8 ĢƵ fixes the malfunction primarily by means of remote data transmission.
6. Customer obligations
6.1 As CPO, the customer must define the conditions under which users can use the charging systems operated by him, in particular the price tariffs within the SaaS. As CPO, the customer is responsible for verifying and complying with any applicable legislation, such as that of verification law or the PAngV.
6.2 The customer must protect and store the access data provided to him against access by third parties in accordance with the state of the art. ĢƵ must be notified immediately of any unauthorised access.
6.3 The customer will ensure that use is only carried out to the extent contractually agreed. The customer is liable for all acts and omissions of authorized users and third parties who access the SaaS, such as for their own acts or omissions.
6.4 Before storing or using the data in the SaaS, the customer will check the data for viruses or other harmful components and use state-of-the-art measures (e.g. virus protection programs) for this purpose.
6.5 The customer is responsible for regularly carrying out appropriate data backups.
7. Guarantee
7.1 Technical data, specifications and performance information in public statements, in particular in advertising material, are not quality information. The agreed nature of the SaaS results from the description in the documentation, unless otherwise agreed in writing.
7.2 ĢƵ will provide and receive the SaaS to the customer in a condition corresponding to the agreed quality. The obligation to maintain does not include adapting the SaaS to changing operating conditions and technical and functional developments, such as changes in the IT environment, in particular changing the hardware or operating system, adapting to the range of functions of competing products or establishing compatibility with new data formats.
7.3 The SaaS is offered for ĢƵ hardware. ĢƵ cannot guarantee that charging solutions used by the customer, which have not been produced by ĢƵ, meet the requirements for a connection to the SaaS. The customer or the respective manufacturer of the charging solution is the sole responsibility of the customer or the respective manufacturer of the charging solution to any charging solutions used by other manufacturers. Insofar as any services to be provided by ĢƵ are to be regulated in a separate order and paid separately.
7.4 In addition, the warranty provisions of rental law apply with regard to the granting of use of the software and the provision of storage space (Sections 535 et seq. BGB).
7.5 The warranty for only insignificant reductions in the suitability of the service is excluded. Fault-independent liability in accordance with Section 536a (1) BGB for defects that already existed at the time of conclusion of the contract is excluded.
7.6 The customer must immediately report any defects to ĢƵ.
7.7 Customer warranty claims due to material or legal defects expire one year from the start of the statutory limitation period. For claims for damages and expenses made by the customer, the provisions in Part A Section 8 of the terms and conditions apply in addition.
8. Customer's obligations to cooperate
8.1 Insofar as ĢƵ is obliged to provide troubleshooting services in accordance with Section 5 Part C of the terms and conditions, the customer must provide ĢƵ access to its computers via remote data transmission. If it is not possible to correct errors via remote data transmission because this access was not ensured and a local deployment is required as a result, ĢƵ will calculate this in accordance with the current price list plus travel costs and other expenses. In this case, the response and recovery times set out in Sections 5.4 and 5.5 will be extended by a reasonable period of time. Access via remote data transmission takes place via a connection protected against unauthorized access by third parties in accordance with the state of the art.
8.2 The prerequisite for providing the services in accordance with sections 4 and 5 (hereinafter: maintenance services), in particular for troubleshooting and handling errors, is that the customer uses the software up to date. There is no obligation to use the current software version if this is not reasonable for the customer, for example because the latest software version is faulty and the customer's operational process is affected as a result. If the customer is not obliged to use the current version of the software, ĢƵ has an extraordinary right of termination.
8.3 The customer will support ĢƵ in every way in fulfilling maintenance services. In particular, in the interest of efficient troubleshooting and handling of errors, the customer will appoint a representative with in-depth knowledge (administrative knowledge) of the software to be maintained as a contact person for ĢƵ immediately after conclusion of the contract and name ĢƵ.
9. Remuneration, payment
9.1 The customer pays a monthly rental fee for providing use of the SaaS. The amount of the rental fee depends on the individual contract and the currently valid price lists.
9.2 The rental fee is to be paid monthly in advance. The advance payment is due no later than the 3rd working day of each month. If the customer is in default of making the advance payment, interest is payable on the claim.
9.3 ĢƵ may adjust the rental fee at its reasonable discretion (Section 315 III BGB) by notifying the customer with receipt no later than six weeks before the end of a contract period (10.1) with effect for the following contract periods. In the event of an adjustment, the customer has an extraordinary right of termination. The extraordinary right of termination must be exercised within one month of notification of the price adjustment.
9.4 ĢƵ may claim additional compensation for its expenses insofar as (i) a software malfunction reported in accordance with Section 5 is associated with the use of the SaaS in breach of contract, (ii) additional expenses due to improper fulfilment of the customer's obligations to cooperate in accordance with Sections 6 and 8, or (iii) the customer requests services not owed. Insofar as ĢƵ is entitled to demand payment of its expenses in addition to the rental fee, this will be billed at the ĢƵ billing sections and ĢƵ list prices for hourly, daily and expense rates valid at the time of payment.
9.5 All charges are exclusive of statutory value added tax, where applicable.
10. Duration, return
10.1 The user contract is initially concluded for a fixed term of 24 months (minimum contract period). The contract starts on the date specified in the order confirmation or, in the absence of this, on the date of approval by the customer. Ordinary termination is excluded during the minimum contract period. After expiry of the minimum contract period, the contract period is automatically extended by a further twelve months unless it is terminated in writing by a party with a notice period of three months before the end of the respective contract period.
10.2 Termination for good cause remains unaffected.
10.3 After termination of the rental agreement, the customer must uninstall the software provided by ĢƵ and delete any remaining software remnants and all associated data from the IT system in a way that cannot be reconstructed. At the request of ĢƵ, the customer must confirm the fulfilment of the above obligations in writing.