The following General Terms and Conditions of
Bubenheimer Bann 11
Tel.: +49 261 20 06 93 330
Telefax: +49 261 20 06 93 420
Executives: Lutz-Henrich Allert, Didier van Bouwel, Mark Bowser, Martin Forbes
Commercial register: HRB 6373
Place of business: Amtsgericht Koblenz
VAT number: DE 211 218 578
(hereinafter “Modix”) set out the contractual relationship between Modix and the Customer, who makes use of any of Modix’s services.
§ 1 General, scope and changes to the General Terms and Conditions
(1) These terms and conditions are the subject of all our contracts with principals within the meaning of § 14 BGB (German Civil Code (hereinafter referred to as “Customer”).
(2) Our deliveries, services and offers are all made exclusively on the basis of these Terms and Conditions. They also apply for all future transactions with the Client, insofar they concern legal transactions of an equal or similar nature.
(3) Any of Customer’ s business or purchase terms and conditions are hereby rejected.
(4) With Customer’ s consent, Modix has the right to change the content of these terms and conditions at any time and without notice, insofar as the change is reasonable for the Customer, taking into account Modix’s interests. Consent for the change of these Terms and Conditions is deemed granted insofar as the Customer has not rejected the change within two weeks after receipt of the notification of change. Along with the notification of change, Modix undertakes to inform the Customer of the time limit for objections as well as to point out the consequences of failing to object.
§ 2 Subject matter of the contract
(1) Subject matter of these Terms and Conditions are the performance/ delivery and other services of Modix’s ‘Modix system’ software application (hereinafter “Software”). Included herein are licensing, support, training, consulting, as well as customising (hereinafter collectively referred to as “Services”). In addition, supplementary deliveries and services by Modix may be subject matter of these Terms and Conditions.
(2) All services offered by Modix are based on the prevailing price list, and offers are made in writing and sent by fax, letter or email. Prerequisite for drawing up an offer is for the customer to provide a concrete, written description of needs and requirements or to fill out the forms provided by Modix and then send them back to Modix.
The offer from Modix and the concrete, written description of Customer’s needs and requirements and/or the forms is equated with the use of Modix’s online order form.
§ 3 Conclusion of the contract
(1) Offers from Modix are non-binding and subject to change, unless Modix has expressly referred to them as binding. Drawings, diagrams, measurements and other performance figures are only binding if this is expressly stipulated in writing.
(2) A contract comes into existence with the acceptance by the Customer of an offer from Modix by fax, letter or email. In the event the online order form is used, a contract comes into existence once Modix sends the order confirmation to the Customer by fax, letter or email.
§ 4 Provision of the Service(s)
(1.1) Modix keeps the software on its server on call for the Customer. The Customer obtains the non-exclusive right limited to the term of this Contract to access the Modix software via telecommunications and use it via an operating system independent TOP 3 listed browser with the software connected functionalities in accordance with the contract. The Customer obtains no additional rights.
(1.2) Modix provides the Customer with a user account for the use of its services. With the aid of a password-protected access, the Customer obtains access to the service package that was ordered.
(1.3) The Customer’s entitlement to use the functions provided by Modix within the context of the licensing only exists within the scope of the prevailing state of the art. Modix ensures an annual average availability of services of 98.5% of the time, with the exclusion of those time s in which use is impossible for the Customer due to reasons that are beyond Modix’s control, such as force majeure, faults of third parties, etc. Modix is not liable for the continuous availability of all functionalities. Modix is also not liable for obtaining a given transfer capacity and/or a given transfer speed in the transmission of data to or from computers.
(1.4) The Customer does not have the right to use the software beyond the use allowed under the Contract or to allow third parties to use or make it accessible to third parties. In particular, the Customer is not allowed to copy, sell or temporarily hand over the software or parts thereof, and especially not to lease it out or lend it.
(1.5) For each case in which the Customer negligently enables use of the software by users or third parties that Customer has not reported to Modix, the Customer must pay the respective damages in the amount of the payment that would have been due if a contract for the regular contact term of at least 24 months for an individual user had been concluded. The Customer will have the right to prove that no or substantially less damage/loss is present.
Modix is entitled to assert further claims. In the event of an unauthorised transfer of use, upon request, the Client must immediately send Modix all information for asserting claims against the User, in particular their name and address.
(1.6) If , through no fault of Modix, the contractual use of the software infringes third-party property rights, Modix is entitled to refuse the services affected by this. Modix will inform the Customer immediately and enable them to have appropriate access to their data.
(2.1) The customer asks support questions by telephone, fax or e-mail to Modix at the address(es) listed by Modix. Modix will process the support questions and inform the Customer of the presumed solution.
(2.2) Modix is available at the company headquarters (currently in Koblenz) Monday through Friday from 9 AM to 6 PM for telephone enquiries from customers regarding the contract subject matter, with the exception of public holidays. Modix is not compelled to answer enquiries from the Customer that concern services that do not come under the agreed scope of services.
(2.3) Customer’s entitlement to support by Modix stipulates that the Customer must provide proof of identity to Modix. For this, the Customer has to give their customer number within the context of the enquiry.
(2.4) Customer’s entitlement to support ends when the Customer is in arrears with their payment obligations. The Customer holds Modix harmless against any claims that may arise due to the suspension of support for these reasons.
(2.5) Support is a service. Modix is not liable for the success of the support.
(3.1) Modix conducts trainings itself, or with third parties contracted for this purpose, for Customer’s employees in a Modix training centre, at another location determined in advance by Modix or-on the basis of a separate agreement-at Customer’s premises.
(3.2) If training courses to be provided at the Customer’s premises cannot be performed by Modix for reasons for which Modix is not responsible, the Customer shall nonetheless compensate Modix for the agreed performance, unless the Customer can provide evidence that Modix’s employees could have been employed elsewhere.
(3.3) The concrete scope of services and the content of the training comply with Modix’s predefined service catalogue, which can be requested from Modix. The Customer bears sole responsibility for commissioning the correct scope of services.
(3.4) Deviations from the predefined Modix service catalogue are possible within the context of the commissioning of individual trainings, however to have effect, they require written agreement between Modix and the Customer.
(3.5) There is no obligation for the training sessions to be conducted by a particular trainer. On the contrary, Modix determines the assignment of future trainers.
(3.6) Only Modix is authorised to issue instructions regarding future trainers.
(3.7) Trainings are services. Modix is not liable for training success.
(3.8) Changes caused by Modix with regard to time and place of the training entitle the Customer to withdraw free of charge from the concluded training contract.
If Modix works in an advisory capacity, it is only liable for the service but not for the consultation success.
Within the scope of commissioned “customising orders” (hereinafter ” adjustment developments”), such as the creation of a website, individual agreements between the Customer and Modix will be made, for which these Terms and Conditions will once again additionally apply.
(6) Photo Service
(6.1) Modix will take photographs of Customer’s vehicles on Customer’s premises through the use of an external service provider.
(6.2) If the photo service cannot be provided at Customer’s premises for reasons for which Modix is not responsible, the Customer shall nonetheless compensate Modix for the agreed performance, unless the Customer can provide evidence that Modix’s external service provider could have been employed elsewhere.
(6.3) The concrete scope of services and the content of the photo service comply with Modix’s predefined service catalogue, which can be requested from Modix. The Customer bears sole responsibility for commissioning the correct scope of services.
(6.4) The photographs produced shall only be used in the software. Modix inserts the photographs into the software. The Customer may continue to use the photographs within the scope of possibilities of the software.
(7) Status reports
(7.1) At its own expense, Modix will commission external service providers to draw up status reports.
(7.2) If the commissioned status reports cannot be produced for reasons for which Modix is not responsible, the Customer shall nonetheless compensate Modix for the agreed performance, unless the Customer can provide evidence that Modix’s external service provider could have been employed elsewhere.
(7.3) Modix gives the Customer the status reports in digital form for further processing.
(7.4) Upon request, the Customer can use the software for drawing up status reports within the scope of a licensing agreement. The responsibility for drawing up status reports is then assumed by Customer, without warranty by Modix.
(8) Provision of data
(8.1) Provided the Customer is authorised to adapt data from the Modix system (for use in) in its fair(s), under a contractual agreement, the following applies:
(8.2) The Customer is entitled to independently select for data export the trade fair interfaces available in the software with regard to the target fair, to activate, deactivate and determine the number of data transfers. The trade fair operator does not have the right to retain specific data sets from the software.
(8.3) The data is always transferred only in such a way as allowed by the trade fair interfaces. [D1]
(8.4) Modix assumes no liability for the completeness and accuracy of the transmitted data.
(8.5) Without prior written permission from Modix, the trade fair operators are not allowed to pass on to third parties the data transferred from the software via an interface. This applies in particular with regard to passing it on to other trade fairs.
(9) Domains (Internet addresses), hosting and e-mail
(9.1) Top-Level-Domains are administered by a number of different, mostly national organisations. For the allocation of domains, each of these organisations has laid down different conditions for the registration and administration of top-level domains, the associated sub-level domains and the procedure for domain disputes. Therefore it applies for the corresponding services from Modix additionally to the corresponding allocation conditions. To the extent that .de-domains are subject of the contract, the DENIC domain guidelines apply in addition to the DENIC domain terms and conditions.
(9.2) With the procurement and/or maintenance of domains, Modix only acts as an intermediary in the relationship between the Customer and the respective organisation for domain allocation. Modix has no influence on the domain allocation and assumes no liability with regard to the Customer actually being allocated the domain they applied for and/or that allocated domains are free of third-party rights, or will exist forever. Rather, Modix guarantees the Customer that the domain they requested will not infringe any third party rights.
(9.3) Modix guarantees the availability of its server within the scope of the prevailing state of the art and at an annual average of 98.5% of the time, with the exclusion of those times in which access is impossible for the Customer due to reasons that are beyond Modix’s control, such as force majeure, faults of third parties, etc.
Modix is not liable for continuous availability.
Modix is also not liable for obtaining a given transfer capacity and/or a given transfer speed in the transmission of data to or from computers.
(9.4) The Customer does not have a right to have the server assigned the same IP address for the entire term of the contract.
(9.5) Modix assumes no liability for the correct reproduction of the Customer’s website in Internet presence, unless Modix can be accused of an intentional act or gross negligence. When creating websites commissioned by Customers, Modix users the current up-to-date, popular browser versions.
(9.6) Modix assumes no liability for compliance with statutory labelling requirements. Depending on the design of an Internet presence, there are specific labelling requirements such as those on the basis of to the Telemedia Act and the German Federal Data Protection Act.
(9.7) to ensure e-mail services, Modix users external service providers.
§ 5 Rights and obligations of Modix
(1) The dates and deadlines mentioned by Modix as well as the location where the contract is to be performed are not binding unless otherwise expressly agreed in writing.
(2) All performance commitments and deadlines are subject to us receiving proper and punctual delivery and performance. Partial deliveries and performances to Modix are not permitted..
(3) Delays in performance due to force majeure and circumstances for which Customer bears the responsibility as well as delays by the Customer attributable to third parties, shall entitle Modix to postpone the provision of the service concerned for the duration of the hindrance plus an appropriate start-up time. Modix will notify Customer of performance/service delays caused by force majeure.
(4) Moreover, Modix is only in default if the customer has given Modix at least a 1 month extension, in writing, after the due date of the performance/service.
(5) For copyrighted works of Modix, such as the Modix screen mask or adaptation developments, upon full payment of the remuneration due to Modix, the Customer acquires the simple, non-exclusive, non-transferable/assignable and unlimited in terms of time and location within the contract territory, right to use the contractual work results and insofar as the order to create the program is subject of the contract, the contractually intended purpose in the object code. The source code is not subject matter of this transfer of rights.
(6) For Open Source Programme, § 5 paragraph 5 does not apply. In the event the Open Source Programmes are used within the scope of performance/service provision by Modix, the licence conditions belonging to the Open Source programmes will apply exclusively.
§ 6 Rights and obligations of the Customer
(1) The Customer is obliged to provide all necessary cooperation deliveries/performances/services so Modix can provide the service/performance due under the contract. In particular, provide all information, documents and accesses required for performance of the contract. If the Customer does not duly fulfil its cooperation obligations, then the contractually agreed performance deadlines are extended accordingly. In addition, Modix can demand the full payment, even without completion, at the point in time at which the service for the customer could have been provided if the latter had fulfilled its cooperation obligation.
(2) The Customer is obliged to check Modix’s performance for obvious defects and errors immediately after notification of its completion and delivery. Unless otherwise agreed, the period during which obvious defects can be reported is 1 week starting from the date on which Modix informs the customer of the completion and delivery of the service. Modix must be given detailed written information of the defects discovered.
(3) For commercially/economically independent usable parts, Modix can ask the Customer for a confirmation of delivery. In this case, with the final partial acceptance, the totality of the service/ performance is deemed to be approved.
(4) If the Customer does not declare the absence of defects in the performance/service within the period referred to under § 6, paragraph 2 or does not inform Modix of the grounds for the required extension of the deadline under§ 6, paragraph 2, in writing before the expiry thereof, then the service to be provided in accordance with the contract shall be deemed to be accepted as soon as this deadline has expired.
(5) Defects, which could not be detected within the period referred to in § 6 paragraph 2, even with careful examination by the Customer, must be immediately reported to Modix in writing after they are discovered.
(6) If at Customer’s request, Modix performs work to remove defects and in so doing determines that there is no defect or there is a defect that lies outside of Modix’s area of responsibility, the Customer is obliged to pay Modix at the standard local rate for the work carried out to remove the defect(s).
(7) The Customer undertakes to keep strictly secret the password assigned to it by Modix and to inform Modix immediately as soon as it learns that the password is known to unauthorised third parties. Damage/loss that Modix sufferers because of abusive use of its password due to Customer’s fault, shall entitle Modix to claim for damages.
(8) The Customer assures that content publicised with Modix’s software does not violate the law in force nor violate the contractual, agreements. The Customer may not advertise, offer or sell Modix’s services or products.
(9) The Customer is solely liable for the total content that it publishes with the aid of Modix’s service and in this respect, holds Modix harmless against third-party claims.
(10) The Customer must notify Modix immediately in writing of any change that occurs with regard to customer information or relationships during the term of the contract. This includes loss of the domain.
(11) Breaches by the Customer of its obligations under § 6, paragraphs 7 through 10, give Modix the right to block the access and to the extraordinary termination of the contract.
(12) All digital and physical documents provided to the Customer are exclusively for the Customer’s personal use. All rights remain reserved, in particular those of reprint, distribution and copying the documents or parts thereof. No part of the documents may be reproduced in any form whatsoever, including not for purposes of further use within Customer’s organisation, without written permission from Modix, in particular through use of electronic systems be processed, copied, distributed or be used for public communications.
§ 7 Passing of the risk
The passing of the risk for all services from Modix is the point in time the customer is informed of the completion and delivery of the services/performances. The Customer must confirm the passing of the risk in writing by using the acceptance form provided by Modix. In the case of PoS-Material , the moment of the passing of the risk is the handover of the sending by messenger.
§ 8 Prices and payment terms
(1) All prices mentioned in the offers are net prices to be increased by the respective statutory VAT.
(2) The Modix services commissioned by the customer that go beyond the services included in the offers will be billed to the customer separately. Insofar as no fixed-price has been agreed, the remuneration will be made according to time and expenditure on the basis of the hours worked to 0.5 hours precisely. Begun 0.5 hours worked are rounded off to full 0.5 hours. In the event an hourly rate was not indicated by Modix, the hourly rates, including nature of the tasks, will be individually agreed in writing with the Customer, prior to the performance of the services.
(3) For services that Modix cannot provide at its headquarters (currently Koblenz), separate travel costs, expenses and any costs of overnight accommodation will be billed, All travel by passenger cars is billed at €0.50 per driven kilometre and travel by public transport and hotel costs are billed at cost according to the current highest rates permitted for tax purposes.
(4) Modix entitled to reasonably increase the standard or listed prices for contractual services to offset personnel and other cost increases.. Modix will inform the Customer of these price increases in writing or by e-mail;
The price increases do not apply for the period for which the Customer has already made payments. If the price increase amounts to more than 4% of the previous price, the Customer has the right to terminate the entire contract at the end of a calendar month with one month’s notice; if the Customer uses this right to terminate then up to the date the termination goes into effect, non-increased prices will be charged. An increase of prices within 4 months after initial provision of the service is precluded.
(5) Invoices are payable immediately and without deductions unless otherwise noted on the invoice.
(6) The contractually agreed remuneration for the respective period is payable in advance unless in individual cases an agreement to the contrary has been made.
(7) For services under § 4 Abs. (3), (4) und (5) , Modix reserves the right to request advance payment or a deposit amounting to 50%, further 30% during the conversion and the remaining 20% of the estimated total bill after completion. This does not discharge the Customer from its obligation to make additional payment in the event that after the end of the contract, it is determined that there was underpayment by Modix’s Customer.
(8) All of Modix’s due receivables from the Customer are paid by direct debit if not individually agreed otherwise in writing. To implement the direct debit procedure, the Customer must give its permission for direct debit by means of a direct debit procedure and to irrevocably authorise Modix to withdraw from its account amounts for invoices that are due.
(9) If the direct debit authorisation is revoked by the Customer or if for any reasons-for which the Customer is responsible-implementing the direct debit is impossible, on the basis of the increased processing time and costs, Modix will charge a processing fee in the amount of €25 per unsuccessful debit attempt. This also in the case of a chargeback.
(10) If the payment to the account is agreed by individual contract and in writing, in the event of a delay in payment by the Customer, Modix is entitled to charge the flat rate sum of €25 for every payment reminder.
(11) If the Customer falls into arrears with its payment obligations, Modix is entitled to demand late payment interest at a rate 8% higher than basic rate of the European Central bank. Furthermore, Modix is entitled to block the service for the Customer without this affecting Modix’s claim for payment.
(12) In the case of periodical payment methods stipulated by the Customer, the balance of payments owed to Modix by the customer for the entire term of the contract will become payable immediately in a single payment if the Customer falls into arrears with more than a single instalment.
(13) The customer only has the right to set -off if a counterclaim has been legally established or acknowledged by Modix in writing.
§ 9 Retention of title
(1) Until the final settlement of all claims created and existing on the basis of the business relationship, the goods remain property of Modix (retained goods). With several claims or current account, the retention of title serves as security for the outstanding balance claim, also if individual deliveries of goods have already been paid for.
(2) In the event of a breach by the Customer, such as failure to pay by the due date, after previously fixing a reasonable deadline, Modix has the right to take back the retained goods. If Modix takes back the retained goods, this constitutes a withdrawal from the contract. Modix is entitled to use the retained goods after taking them back. After deduction of a reasonable sum for the commercialisation costs, the realisation proceeds are to be offset with the amounts owed by the Customer.
(3) In the event of seizures of the retained goods by third parties, in particular attachments, the Customer will point out the ownership by Modix and immediately inform Modix.
(4) The Customer is entitled to process and sell the retained goods in the proper course of business, as long as it is not in arrears. Pledges or chattel mortgages are not allowed. The Customer assigns to Modix as security the full of claims stemming from the resale or any other legal ground (insurance, tortious act relating to the retained goods, with immediate effect. Modix gives the Customer revocable authorisation to collect the claims assigned to Modix on its own behalf. The direct debit authorisation expires if the Customer does not duly comply with its payment obligations , gets into payment difficulties, enforcement proceedings are brought against it or judicial insolvency proceedings are opened or the opening is refused due to insufficient assets..
(5) Processing or conversion of the goods always occurs for Modix as manufacturer, however without obligation for Modix. If the delivered goods are processed with other goods not belonging to Modix, Modix then acquires co-ownership of the new item in proportion of the value of the delivery items to the other processed items at the time of processing. If the delivered goods are connected or inextricably mixed with other items not belonging to Modix, Modix acquires co-ownership of the new item in proportion to the value of the delivered goods to the other connected or combined goods. If with the connection or mixing, the Customer’s item is to be regarded as main item, then it is deemed agreed that the Customer transfers a share of the co-ownership of the new item to Modix. The Customer preserves the thus formed co-ownership for Modix.
(6) Modix is obliged to release securities it is entitled to, the extent that if the realisable value of the securities exceeds the secured claims by more than 10%; thereby the choice of securities to be released is incumbent upon Modix.
(7) Photographic and graphic supplies/services always remain the property of Modix. The Customer only acquires the basic right to make use of the created delivery (-ies)/service (s) within the context of the provisions as per contract. Special arrangements must be agreed to in writing.
§ 10 Warranty and guarantees
(1) In the event of the violation of a contractual obligation, the customer is entitled vis-à-vis Modix to the statutory rights under the following provisions: Modix guarantees that services corresponding to the specification of services valid at the signing of the contract can be used and essentially fulfil the functions described therein.. Defects and errors that appear after transfer/handing over on account of modifications or upgrades by third parties , such as E-commerce platforms, software tools, marketplaces and therefore lie outside the control of Modix, do not justify any warranty obligation on the part of Modix.
(2) The Customer is only entitled to warranty claims if it has fulfilled its obligations to inspect and report defects .
(3) With justified and timely reporting of defects, the Customer has, during the warranty period, a right to subsequent performance. With this, Modix has the right to choose with regard to the type of subsequent performance-remedy the defects or delivery of the defect-free item. If the subsequent performance fails or if additional subsequent performance attempts are unacceptable/unreasonable for the Customer, the Customer is entitled to reduction, termination or withdrawal from the contract.
(4) If a claim is raised against Customer by its customer or by a user due to a defect in the delivered goods which was already present at the passing of the of risk or by a user making a complaint as end customer, Customer’s statutory rights of recourse against Modix pursuant to §§ 478, 479 of the German Civil Code shall remain unaffected.
(5) The Customer can only assert claims for damages under the conditions laid down in 11 due to a defect if the subsequent performance has failed or Modix is refused the subsequent performance. Customer’s right to assert additional claims for damages under the conditions laid down in §11 shall remain unaffected.
(6) The prescription period for defect claims is 1 year starting from the passing of the risk. This does not apply insofar as in accordance with §§ 438, paragraph 1, number 2(buildings and objects for buildings), 478, 479 (supplier’s recourse) and 634 a, paragraph 1, number 2, German Civil Code (construction defects), the law prescribes longer periods such as in cases of injury to life, limb or health, of an intentional or grossly negligent breach of obligation by Modix and of fraudulent concealment of a defect.
(7) Customer’s right to use Modix’s service/performance only exists within the scope of the prevailing state-of-the-art. Modix is not liable for the suitability of the service for a specific intended purpose unless this was explicitly agreed. Modix does not guarantee that the performance/service meets the Customer’s requirements or reflects its expectations or is available continuously without interruption.
(8) Information in brochures and other documents is only for purposes of description and does not represent any guarantees. Guarantees require express written confirmation from Modix.
(9) Only the Customer Is entitled to claims against Modix due to defects and the claims are not assignable.
§ 11 Liability
(1) Modix is only liable for damage/loss that occurs insofar as it is caused by the breach of a substantive contractual obligation or wilful or grossly negligent conduct by Modix, their legal representatives or vicarious agents. If a substantive contractual obligation is breached by simple negligence, then Modix’s liability is limited to the typical foreseeable contractual damage. A substantive contractual obligation is an obligation the fulfilment of which initially enables the proper performance of the contract or the compliance with which the Customer has and could rely on.
(2) Further liability for damages is precluded. Liability for tortious injury to life, limb or health in accordance with the statutory provisions, shall remain unaffected. This also applies to compulsory liability under the Product Liability Act.
(3) Modix does not check whether the content of the subject matter sent to it, in particular the Customer’s pictures and text, violate any third party rights. The Customer alone is liable for the admissibility and holding harmless with regard to the content it sent, in particular with respect to copyright, competition law and criminal law.
(4) In the internal relationship, the Customer holds Modix harmless against all third-party claims, insofar Customer is liable for their basis. Insofar as a third-party raises a claim against Modix, the Customer must also bear the costs of the necessary legal defence, including all court costs and attorneys’ fees.
§ 12 Effective Date, Term,Termination and Closing
(1) Effective date is, as a rule, the date of receipt of the acceptance of an offer of Modix by the customer by fax, letter or e-mail according to §3 paragraph 2. In the case of the customisation (see §4 paragraph 5) the date of approval of the customisation to be developed or ready to be delivered shall be the effective date. This date also applies to the likely following orders as the date for the commencement of the contract, if the product is to be used in connection with the customisation only.
(2) Early termination of the contract with notice before the effective date shall not be allowed.
(3) A recurring obligation agreed with the customer concerning the performances of Modix ends with the expiry of the term agreed in the contract, provided that it is not terminated by one of the parties with notice 6 months before the end of the respective term. If the contract is not terminated with notice until 6 months before the end of the applicable term, the contract shall be assumed extended for a period originally intended in the same contract. Every termination must be carried out in writing with registered letter to be valid.
(4) The right for termination for exceptional reasons remains unaffected therefrom. Serious contract violations of the customer as well as the continuation of offences by the customer against contractual arrangements in spite of a warning letter by Modix as well as a decree of insolvency on the property and effects of the customer or if its initiation is rejected due to insufficiency of assets shall be accepted as an important reason for an extraordinary termination by Modix. Modix is entitled to extraordinary termination also if basic changes are initiated concerning the juridical or technical standards on the Internet which may not be accepted by Modix for its continued performance, in part or in full.
(5) If the customer is behind with the payment of the agreed reimbursement or a considerable portion of the reimbursement for 2 consecutive months or for a period which extends over more than 2 months, or is behind with the payment of the agreed reimbursement by an amount which totals the reimbursements of 2 months, Modix is entitled to terminate the contract without notice, and to claim immediately due a lump sum in damages totalling up to one quarter of the amounts remaining payable until the date of the expiry of the standard term of the contract. The amount of damage may be higher or lower, if Modix can document a higher amount of damages or the customer can prove otherwise.
(6) Modix is entitled to block the user account of the customer during the time of default of payment. The customer remains obliged to pay the agreed reimbursement also during the legitimate freezing of the account by Modix. Modix may not be held liable for damages inflicted on the customer because of the blocking of the user account.
(7) After the end of the contract the data of the customer shall immediately be blocked or deleted by Modix from the computers of Modix.
§ 13 Confidentiality
(1) The customer undertakes to keep indefinitely secret business secrets and trade secrets or information marked confidential which has been made available to or acquired by Modix during the course of its performance under the contract. This applies in particular for technological information, as far as this information is not in the public domain.
§ 14 Data Protection
(1.1) In this Term 14 and Annex 1, the following terms shall have the meanings set out below:
(1.1.1) “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Customer or Modix (as the context allows), where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
(1.1.2) “Data Protection Laws” means applicable legislation protecting the personal data of natural persons, including in particular the national legislation implementing Directive 95/46/EC (and, from 25 May 2018, the GDPR), together with binding guidance and codes of practice issued from time to time by relevant supervisory authorities;
(1.1.3) “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data; and
(1.1.4) The terms “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach” and “Process/Processing” have the same meaning as described in the Data Protection Laws.
(2) Description of Personal Data Processing
(2.1) In Annex 1 to these Terms and Conditions, the parties have set out their understanding of the Personal Data to be Processed by Modix pursuant to the contract.
(3) Data Processing Terms
(3.1) In the course of performing their mutual obligations under the contract, both parties shall duly observe their respective obligations under the Data Protection Laws.
(3.2) Insofar as Modix processes Personal Data for Customer as a Data Processor, Modix shall:
(3.2.1) process the Personal Data solely on the documented instructions of Customer, for the purposes of providing services;
(3.2.2) process only the types of Personal Data, relating to the categories of Data Subjects, and in the manner required to deliver services, as is set out in the Annex 1, or as otherwise agreed in writing by the parties;
(3.2.3) take all measures required by Article 32 of the GDPR to ensure the security of the Personal Data;
(3.2.4) take reasonable steps to ensure the reliability of any staff who may have access to the Personal Data, and their treatment of the Personal Data as confidential;
(3.2.5) be generally authorized to permit third parties to Process the Personal Data (“Sub-Processor”), subject to Modix meeting the conditions set out in Article 28 (2) and (4) of the GDPR;
(3.2.6) promptly notify Customer of any communication from a Data Subject regarding the Processing of their Personal Data, or any other communication (including from a supervisory authority) relating to either Party’s obligations under the Data Protection Laws in respect of the Personal Data;
(3.2.7) notify Customer without undue delay of any Personal Data Breach, such notice to include all information reasonably required by Customer to comply with its obligations under the Data Protection Laws;
(3.2.8) provide Customer on request, via correspondence, with all information reasonably required in order to demonstrate compliance with this Term 14, and where Customer still has reasonable doubts regarding Modix’s compliance, permit Customer, on reasonable prior notice, and on no more than one occasion per calendar year (except where there is reasonable suspicion that Modix is in breach of the terms of this Term 14, to inspect and audit the facilities used by Modix to Process the Personal Data, and any and all records maintained by Modix relating to that Processing, subject to Modix withholding access to any records containing confidential information pertaining to other clients of Modix and Customer bearing the reasonable costs of Modix incurred in facilitating the audit;
(3.2.9) provide commercially reasonable assistance requested by Customer in relation to (i) any communication received under Term 3.2.6, as well as any similar communication received by Customer directly; and (ii) any Personal Data Breach, including by taking any appropriate technical and organisational measures directed by Customer; and
(3.2.10) cease Processing the Personal Data upon the termination or expiry of the contract and, subject to Customer expressly exercising such option in writing, either return, or securely delete the Personal Data upon Customer’s request
(3.3) Customer shall ensure that, wherever it discloses Personal Data to Modix, it is authorized to do so in accordance with the Data Protection Laws for the purposes of Modix processing that Personal Data to provide services.
(4) Use of De-identified Data
(4.1) Customer acknowledges that Modix collects and uses data from across its client base in order to improve its products and services for its customers, and to carry out related research. Modix takes steps to aggregate or otherwise de-identify any Customer Data used for these purposes, and therefore does not knowingly process any Personal Data. However, to the extent that any such data is held to be Personal Data in a particular jurisdiction, Modix shall be the Controller for the purposes of the Data Protection Laws.
§ 15 Final Provisions
(1) For contracts executed with Modix on the basis of these terms of business and for any disputes arising thereunder of any kind whatsoever, the law of the Federal Republic of Germany applies exclusively.
(2) As far as the provisions of the agreement of the United Nations about contracts concerning international sale of goods (UN Sales Convention) come into question, these provisions do not apply.
(3) Place of fulfilment of all contractual and legal claims, unless agreed otherwise, is the registered business place of Modix.
(4) Modix is entitled to transfer, in part or in full, the rights and responsibilities arising under the contract executed with the customers to third parties. The declaration of such a contract acquisition shall be in writing with at least 4 weeks’ notice. An announced contract acquisition in this manner shall be assumed approved by the customer, if it does not reject this move in writing within the specified period. The customer shall be made aware by Modix particularly on this consequence.
(5) Special conditions may apply beside these terms of business for separate business dealings, as for example consultations, customisation, White Label, implying divergences from and/or supplements to these general terms and conditions. These shall be agreed with the customer separately in writing and shall be substituted in case of divergences for the corresponding provisions of these terms of business.
(6) Should one provision of the above terms of business or one provision of an agreement individually concluded between Modix and the customer be invalid, the validity of the remaining provisions of these terms of business or of the individual agreement shall not be affected. Any provision which is invalid shall be replaced with a provision that best meets the intended economic purpose and meaning of the invalid provision. Same applies in the case of a contractual loophole.
Annex 1: Description of Personal Data Processing
This Annex includes certain details of the Processing of the Personal Data as required by Article 28(3) GDPR.
1. Subject matter and duration of the Processing of the Personal Data
The subject matter and duration of the Processing of the Personal Data are set out in the contract and these Terms and Conditions.
2. The nature and purpose of the Processing of the Personal Data
Modix is engaged to provide services to Customer in the sphere of digital marketing for the automotive sector which involve the Processing of Personal Data. The scope of the services are set out in the contract, and the Customer Personal Data will be Processed by Modix to deliver those services and to comply with the terms of the contract and these Terms and Conditions.
3. The types of the Personal Data to be Processed
Customer Data: name; date of birth; email address; telephone number; postal / zip code or equivalent; user ID / log-in details; vehicle registration number; any other categories of personal data which a user of the Modix platform or a third party import interface chooses to enter (including, by way of example (but not limited to) message forms and chat boxes).
Web Analytics Data: log files (for website visitor activity); IP address.
Dealership Employee Data: name; job title; contact information.
The categories of Data Subject to whom the Personal Data relates
Clients or prospective clients of Customer’s automotive products or services; other visitors to Customer’s website; employees of Customer or its Affiliates or dealerships.
The obligations and rights of Customer
The obligations and rights of Customer are set out in the contract and these Terms and Conditions.