General terms and conditions of Fleetboard Logistics GmbH
for services provided through software (SaaS) to be used exclusively by traders [“Unternehmer”] who, at the time of the conclusion of the contract, are acting in the exercise of their trade, business or profession.
1. General provisions, contract formation
1.1 The General Terms and Conditions (the “GTCs”) set out below are an integral part of the Fleetboard Logistics GmbH (“Fleetboard Logistics”) customer contract and govern the services provided by Fleetboard Logistics thereunder (the “Services”). All customer contracts between Fleetboard Logistics and the customer automatically include the following terms and conditions upon their formation.
1.2 Any conflicting provisions in the customer’s terms and conditions shall not apply even if their application is referenced and Fleetboard Logistics does not expressly object to them. Any provisions that conflict with the customer contract or its appendices require written confirmation by Fleetboard Logistics in order to be effective.
1.3 Changes to these GTCs shall be communicated to the customer in text form. They shall be deemed to have been approved if the customer does not object in writing within six weeks of being notified of the changes. Fleetboard Logistics shall specifically draw the customer’s attention to this outcome when notifying the customer of the changes. The provisions of these GTCs shall remain in effect if the customer objects to the changes.
1.4 The customer shall honour its application to conclude a customer contract for the provision of Services for four weeks. The customer contract is concluded when the customer duly completes and signs the application to conclude the contract and Fleetboard Logistics confirms the written application in writing within four weeks.
2. Subject matter of the contract, scope of Services/requirements
2.1 The scope of Services is set out in the customer contract. A current detailed description of the applicable Services can be viewed on the portal. The service description is subject to change due to ongoing product development. Fleetboard Logistics shall inform the customer of the change in function.
2.2 The equipment needed to use the Services with the Fleetboard Logistics-recommended configuration is determined by the service description, which can be accessed by contacting Fleetboard Logistics Support or viewed on the portal after the customer logs in. Likewise, suitable IT equipment (mobile device, data plan, computer, internet connection) must be available on the customer’s premises in accordance with the minimum requirements communicated by Fleetboard Logistics. The minimum requirements can be viewed on the portal.
2.3 The Services that Fleetboard Logistics provides in transferring or retrieving content are limited to the transfer of data from its server to the interconnection point, i.e. an interface provided by Fleetboard Logistics or the point at which the content enters the internet, whichever comes first. Fleetboard Logistics has no influence over data communications outside its own communications network. It therefore has no obligation to successfully transfer content to or from the device requesting the content outside its own communications network, particularly with respect to the availability of internet access and third-party mobile communications.
2.4 Fleetboard Logistics may upgrade the software and hardware used in providing the Services to keep up with the state of the art. Fleetboard Logistics shall notify the user if the upgrade means that the content that the user has stored on the server will have to meet additional requirements in order for Fleetboard Logistics to provide the Services.
3. Registration, login credentials
3.1 An email address is required to identify the customer’s users during login and communicate with Fleetboard Logistics. The user shall define his or her own personal password. The customer is responsible for binding users to maintain the confidentiality of the login credentials vis-à-vis third parties. This information must not be shared with or given out to third parties. If the customer or user nonetheless shares the information with a third party, the customer shall on first request hold harmless and indemnify Fleetboard Logistics from and against all claims that may be brought against Fleetboard Logistics in connection with the use of the information by the third party or another party.
3.2 Any and all actions taken by the customer’s users and any third parties using the customer’s or its users’ login credentials shall be attributed to the customer.
3.3 Users register by clicking a confirmation link sent to the provided email address and truthfully entering and confirming the registration data in the subsequent input screen.
3.4 Wherever the customer includes third parties outside its business organisation as users, it shall ensure that these third parties are operating as traders [“Unternehmer”] and, in cases of doubt, shall have evidence presented in the form of meaningful documents such as their business registration or business letters bearing their VAT registration number.
3.5 The customer contract sets out the contractual terms and conditions for a particular account. All the devices for a particular customer are listed under this account.
4. Consideration, terms of payment, default
4.1 The prices stated in the current price list are before-tax prices and may be subject to value-added tax under tax law. The customers shall bear the cost of changes in value-added tax. Unless otherwise stated, the fees for the Services provided include all communication and hosting services (see section 2 of the GTCs). Services are generally billed monthly. The scope of Services depends on the number of subscribers connected, devices used and data packets transmitted. All fees are stated in EUR plus the value-added tax owed by law.
4.2 All the devices that were active at any time during the billing month will be billed. Fleetboard Logistics shall prepare and send the customer a monthly invoice for the Services used based on the prices stipulated in the customer contract.
4.3 Claims for reimbursement against Fleetboard Logistics due to overpayments, double payments or other circumstances shall be credited and applied to the next amount due. Increases in the costs incurred by Fleetboard Logistics may lead to price increases, especially if they are the result of changes in data plans, price increases by network or telecommunication operators, increased taxes or other additional costs. Fleetboard Logistics may raise the prices for the Services accordingly but no sooner than six months after the contract is concluded and no more than the prices that apply to new contracts. Changes in prices shall become effective in accordance with the following provisions if Fleetboard Logistics has sent the new price list to the customer. If prices increase, the customer may terminate the contractual relationship within one month of receiving the new price list or the notification of the change and what it entails, with the termination taking effect on the date on which the price increase is to take effect. When sending the new price list or the aforementioned notification, Fleetboard Logistics shall expressly draw the customer’s attention to the date when the change is to take effect and to the customer’s right of termination. No action needs to be taken if the customer wishes to continue the contractual relationship. The contract will then continue with new prices.
4.4 All invoices shall become due for payment upon receipt of these invoices by the customer unless otherwise agreed by the parties.
4.5 Payment by cheque is not permitted.
5. Warranty, availability of Services
5.1 Fleetboard Logistics warrants that
- the Services conform to generally accepted modern engineering practices and have no defects that will render the Services unsuitable or significantly less suitable to be used for the purpose assumed under the customer contract,
- there is a technical connection between the server used to provide the Services and Fleetboard Logistics’s internet connection; Fleetboard Logistics’s liability for connection errors is limited to its own wilful misconduct or gross negligence.
5.2 The customer shall notify Fleetboard Logistics of any defects without delay. Claims for defects become time-barred after six months. The warranty does not cover claims based on damage or malfunctions caused because the customer, a customer user or a target subscriber linked to the customer or its user has violated these GTCs or the terms and conditions that apply to the app for mobile devices. The warranty does not extend to any success and/or failure that the customer expected to achieve by using the data provided by the Services.
5.3 Fleetboard Logistics shall provide the Services without interruption (where possible) from 6:00 a.m. to 10:00 p.m. CEST (“main service period”) with a total annual average availability of roughly 97.5%. This does not include times when the server is inaccessible via the internet due to technical or other problems beyond Fleetboard Logistics’s control. The Services may be limited or unavailable outside the main service period.
5.4 Fleetboard Logistics may perform system and other maintenance work at any time outside the main service period and, in urgent cases (e.g. to eliminate faults), during the main service period as well. The Services may not be available while the work is being done. Fleetboard Logistics shall endeavour to perform lengthy maintenance work that only serves to correct faults but not to save the system outside the main service period and, if possible, during periods with lower user traffic (e.g. at night from midnight to 6:00 a.m.).
5.5 The customer is not entitled to use Fleetboard Logistics outside the main service period even if and to the extent that the customer is able to do so. If there is a reduction or cessation in the use of Fleetboard Logistics outside the main service window, the customer shall in particular not be entitled to damages or warranty claims.
5.6 Fleetboard Logistics accepts no liability whatsoever for any recommendations provided on its own websites or on the customer’s portal regarding the processing of data provided for the customer outside the portal and outside Fleetboard Logistics’s Services. Fleetboard Logistics assumes no liability whatsoever for the timely transfer of data as long as its own server sent the data at the interface or the internet interconnection point in a timely fashion.
5.7 All times are stated in Central European Time or Central European Summer Time. Fleetboard Logistics may postpone maintenance windows due to operational conditions or other exceptional circumstances. The customer will be notified of postponements as soon as possible. Fleetboard Logistics may schedule an emergency maintenance window in urgent cases. This may be necessary for reasons such as avoiding damage or correcting errors that cannot be postponed until the next scheduled maintenance window, e.g. corrections for a security vulnerability that is classified as “serious”. Fleetboard Logistics shall notify the customer accordingly.
5.8 The limitations set forth in section 9 shall apply mutatis mutandis to claims for damages against Fleetboard Logistics
6. Set-off, right of retention, cut-off period for objections
6.1 The customer may set off counterclaims against Fleetboard Logistics’s claims outside the customer contract if and only if the customer’s counterclaim is undisputed or if a final judgement has been issued; the customer may exercise a right of retention only to the extent that it is based on claims the customer has under the customer contract.
6.2 The customer shall notify Fleetboard Logistics in writing of any objections to the amount invoiced for Services used within eight weeks of receiving the invoice. If no objection is made within this period, the invoiced amount shall be deemed to have been approved. Fleetboard Logistics shall specifically alert the customer to this outcome on the invoices.
7. Customer cooperation, general customer obligations
7.1 The customer shall provide Fleetboard Logistics with all the data and information required and requested to carry out the project and shall assist Fleetboard Logistics in other respects within reasonable limits. The customer shall be liable for the timely and comprehensive cooperation of any service providers whom it has engaged.
7.2 The customer shall provide qualified employees to serve as contact people for Fleetboard Logistics during normal business hours. The customer shall grant Fleetboard Logistics access to the relevant data and systems needed to provide the Service while taking into account existing security measures and other reasonable restrictions. Once the technical connection has been handed over, the customer shall cooperate in fully populating the Fleetboard Logistics-provided data schema with the correct data and shall hand it over to the responsible project manager within five business days.
7.3 The customer shall report defective Services immediately after discovering them. Furthermore, the customer shall take into account the download intervals and archiving periods set out in applicable national law and independently back up its data on a regular basis using the functions provided for this purpose. Fleetboard Logistics shall not be liable for the costs incurred from a failure to do this.
7.4 Fleetboard Logistics may suspend Services temporarily
- if it notices a significant deviation from the contractual use (section 2.1). A significant deviation is deemed to exist, without limitation, if the number of transmissions and/or queries per customer and/or user per day deviates significantly (more than 25%) from normal use.
- if the system has technical faults and modifications or maintenance are required.
- if the customer violates contractual or legal provisions. If the customer is responsible for the above circumstances, it shall remain obligated to pay the monthly fees for the Services.
7.5 The customer shall notify Fleetboard Logistics without undue delay should the customer discover that the Services are being used in breach of contract or that the portal made accessible to the customer under the customer contract is being used in an inadmissible manner, e.g. by being accessed by third parties.
7.6 The customer runs the risk of breaching legal requirements for data archiving if it uses certain Services improperly without adhering to deadlines. Fleetboard Logistics shall not be liable for any damage the customer may sustain as a result.
8.1 Both parties shall treat as confidential any and all technical and commercial information and documents (including customer usage data) which become accessible to them in connection with this customer contract during the term of the customer contract or which they receive from the other party or from a company affiliated with the other party within the meaning of § 15 of the German Stock Corporation Act (AktG) in connection with the customer contract. That data shall only be made accessible to third parties by prior agreement between the parties or if Fleetboard Logistics makes the data accessible for the purpose of contract performance (subcontractor). Third parties are companies not affiliated with the parties within the meaning of § 15 of the German Stock Corporation Act (AktG). However, Fleetboard Logistics reserves the right to use the data obtained for the purpose of improving Fleetboard Logistics systems. This shall not affect data transfers covered by section 3 of the Privacy Statement or the consent to information on Daimler Group products and services.
8.2 Information and documents shall not be deemed confidential information within the meaning of this section ifthey were demonstrably already known to the party prior to the effective date of this customer contract without the existence of a confidentiality obligation,
- if they are already in the public domain or enter the public domain without breaching the obligations contained in this customer contract,
- if they were demonstrably produced or obtained in the course of the party’s own independent work,
- if they were demonstrably lawfully received by the party from third parties without imposing a confidentiality obligation, or
- if they have to be disclosed under a court or administrative order.
9. Liability/limitation period
9.1 Fleetboard Logistics’s liability shall be limited wherever it is required by law to pay for damage caused by slight negligence: Fleetboard Logistics shall only be liable for a breach of material contractual obligations, such as those obligations (i) which the customer contract, according to its content and purpose, intends to impose on Fleetboard Logistics or (ii) whose satisfaction is essential to the proper performance of the customer contract and on whose satisfaction the customer may and does regularly rely. Liability is limited to the typical damage foreseeable at the time the contract was concluded, excluding all liability for indirect and consequential damage. Wherever the damage is covered by an insurance policy taken out by the customer for a relevant peril (except for fixed sum insurance), Fleetboard Logistics shall only be liable for any detriments to the customer resulting from the loss occurrence, e.g. higher insurance premiums or interest paid until the insurance carrier has settled the claim.
9.2 The foregoing does not affect Fleetboard Logistics’s strict liability for a procurement risk, assumption of a guarantee or the fraudulent concealment of a defect.
9.3 Fleetboard Logistics’s directors, officers, agents, servants [“Erfüllungsgehilfen”] and employees have no personal liability whatsoever for any damage they may cause through slight negligence. All such parties – except directors, officers and managers – shall be subject mutatis mutandis to the liability limitation set out in 8.1 for Fleetboard Logistics for any damage they may cause through gross negligence.
9.4 Furthermore, the limitation shall not apply to injuries to life, limb or health or to liability under the German Product Liability Act (ProdHaftG).
9.5 Irrespective of any limitation of liability, Fleetboard Logistics’s liability for economic loss shall be limited in amount to the typical damage foreseeable at the time when the contract was concluded and shall exclude any liability for indirect and consequential loss.
9.6 The limitation period for claims for damages against Fleetboard Logistics shall expire after one year unless the claims are based on the wilful misconduct of Fleetboard Logistics. The limitation period shall begin to run at the end of the year in which the customer became aware – or should have become aware if it had not acted grossly negligently – of the damage and the underlying circumstances. However, the limitation period for the aforementioned customer claims against Fleetboard Logistics shall expire no more than three years after the damaging event regardless of such knowledge.
9.7 Fleetboard Logistics shall particularly not be liable for damage caused by Service disruptions that are not caused by Fleetboard Logistics. This is the case if Services are physically limited to the reception and transmission range of the base stations operated by the mobile network operator, which may also be adversely affected by atmospheric conditions, topography or obstacles (bridges, tunnels, buildings, etc.). Internet use may be limited by additional adverse effects (e.g. network congestion). Disruptions may arise due to force majeure, including strikes, lockouts and administrative orders as well as technical and other measures (e.g. repairs, maintenance, software updates, add-ons) that occur at Fleetboard Logistics facilities or the facilities of the upstream and downstream service providers and network operators. Disruptions may also arise due to short-term capacity bottlenecks resulting from peak loads on servers, mobile and landline networks and the internet.
10.1 Unless otherwise agreed between the parties upon conclusion of the customer contract, the customer contract is concluded for an indefinite period of time and may be terminated by either party effective on the last day of any month on three months’ notice. Notwithstanding the foregoing, the customer may terminate the contract on one month’s notice in the case of section 4.3 and section 11.1. The activation of the Services for all the devices associated with the relevant account and any forwarding of status messages to external systems will also end once the termination of the customer contract takes effect.
10.2 The customer can deactivate individual devices in the HABBL portal at any time by deleting the link to the device; no prior notice is required. The monthly transaction fee set out in the customer contract for that device will still be charged for the month of deactivation.
The customer contract will continue to apply unchanged with regard to the devices that have not been deactivated. If the customer falls into a lower volume discount category as a result of deactivating devices, this will be automatically taken into account in the billing in accordance with the conditions stipulated in the contract.
10.3 Both parties agree that the entire customer contract may be terminated for cause without notice.
Causes exists, without limitation, if the customer has given incorrect information about its financial situation and that information was a major factor in Fleetboard Logistics’s decision to enter into the customer contract or if the Customer’s financial situation deteriorates, or threatens to deteriorate, significantly and this deterioration jeopardises the fulfilment of its obligations towards Fleetboard Logistics.
10.4 Notice of termination must always be given in writing and addressed to the other party at the address stated in the customer contract.
10.5 Fleetboard Logistics may end (i.e. block) the use of some or all of its Services if the customer is at least € 250 in arrears with its payment obligations or if any posted security has been consumed. However, Fleetboard Logistics will exercise this right no sooner than two weeks after Fleetboard Logistics has notified the customer of the imminent block. Furthermore, Fleetboard Logistics may block access without notice and without observing the aforementioned 14-day waiting period if
- the customer has given cause for terminating the contractual relationship without notice, or
- there is a risk of damage to the landline network or a threat to public safety due to interference from the customer’s terminal equipment.
11. Assumption of contract by third parties/assignment of rights
11.1 Fleetboard Logistics may transfer some or all of its rights and obligations under this contractual relationship to another service provider with six weeks’ notice. The customer may then terminate the contractual relationship within one month of receiving the written notice of change; the termination will take effect at the time of the intended assumption of contract when the successor company takes over the contract from Fleetboard Logistics. Fleetboard Logistics shall expressly inform the customer of this right of termination in the written notice.
11.2 Customers may transfer their rights and obligations under the customer contract to third parties only with Fleetboard Logistics’s prior written consent. Even after Fleetboard Logistics has given its consent, the customer’s contractual obligations, in particular payment obligations, shall only expire when the third party absolutely and unconditionally assumes and agrees to perform the contract.
12. Place of jurisdiction/applicable law
12.1 The exclusive place of jurisdiction for all present and future claims arising out of or in connection with this contractual relationship shall be the court at Fleetboard Logistics’s place of domicile. Fleetboard Logistics may also bring suit at the customer’s place of domicile. This shall also apply if the customer has no place of jurisdiction in Germany.
12.2 The present contractual relationship shall be governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded.
Fleetboard Logistics GmbH, 04/2021