Data Protection Information

  1. Scope of application
    • 1.1 These General Terms and Conditions (hereinafter “GTC”) shall apply to the contracts concluded between you as the customer (hereinafter “Customer”) and us, BMC GmbH, Spohrstraße 2, 04103 Leipzig (hereinafter “BMC”) in connection with the provision of our BEAM MY CAR software solution (hereinafter “Software”).
    • 1.2 Our GTC apply exclusively. Conflicting, additional or deviating terms and conditions of the customer shall not become part of the contract unless expressly agreed otherwise between the customer and BMC. Our GTC shall also apply if we perform a service without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
    • 1.3 Our General Terms and Conditions shall only apply if the customer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
  2. Tariff configurations and contractual objects
    • 2.1 BMC offers the software for rent in different tariff configurations. The content and scope of the services to be provided by BMC in the various tariff configurations, the specific functional scope of the software and the technical and organisational requirements for its use are set out in the respective order.
    • 2.2 Unless expressly agreed otherwise in the order, BMC shall only ever be obliged to provide those services that are provided for in the order and in these GTC for the tariff configuration selected by the customer at the relevant time.
    • 2.3 The object of the contract with the customer is the provision of services for a limited period of time for a fee.
      • 2.3.1 Granting the use of the software for access via an Internet connection as Software as a Service,
      • 2.3.2 Provision of storage space for the data generated by the customer through the use of the software and the data required for the use of the software (hereinafter “application data”) and
      • 2.3.3 Provision of an online user guide for the software.
  3. Provision of the software
    • 3.1 BMC shall provide the software, consisting of the BEAM MY CAR Cockpit and the driver app, from the time agreed in the order on a central data processing system or several data processing systems (hereinafter also referred to as “server” in the case of multiple versions) in the respective current version for use in accordance with these GTC. The software shall not be physically provided to the customer. The software is commissioned independently by the customer on end devices of his choice.
    • 3.2 Agreements on access, system and function requirements on the part of the customer are made in the order.
    • 3.3 The software is accessed via a browser using the encrypted https protocol. The user must specify a user name and a password known only to him. The user must protect and the access data chosen in this way from unauthorised access by third parties.
    • 3.4 BMC is authorised to continuously develop the software further. The further development of the software can lead to an extension and/or modification of the software with the result that new functionalities are available, existing functionalities are optimised in the process and/or the user guidance or the data management is adapted to the state of the art. There is no obligation to modify, adapt or further develop the software, notwithstanding the provisions of the Service Level Agreement (Clause 12). 12 up to and including Clause 17), only if such a change, adaptation or further development is necessary to maintain the software in accordance with the state of the art.
    • 3.5 From the time agreed in the order, BMC will provide sufficient storage space on the server for the application data.
    • 3.6 The transfer point for the software and the application data is the router output of the server. BMC is not responsible for the quality of the required hardware and software on the customer’s side or for the telecommunications connection between the customer and BMC up to the transfer point.
  4. Technical availability of the software; access to the application data
    • 4.1 BMC owes the following agreed availability of the software and the application data at the transfer point. Availability according to sentence 1 is the technical usability of the software and the application data at the transfer point for use by the customer.
    • 4.2 The availability of the software and application data is 99% on an annual average.
    • 4.3 For available use (availability within the meaning of para. 4.2 is deemed to be given) also includes the periods during
      • 4.3.1 malfunctions in or due to the condition of parts of the technical infrastructure required for the execution of the software that are not to be provided by us or our vicarious agents;
      • 4.3.2 other failures for which BMC is not responsible, in particular during failures that
        • were caused by incoming IT attacks. This shall not apply if the protective measures to be taken by BMC against such attacks did not correspond to the state of the art at the time of the IT attack;
        • are caused by improper use of software or hardware by the customer.
      • 4.3.3 only an insignificant reduction in suitability for contractual use;
      • 4.3.4 Maintenance work in accordance with Clause 4.4.
    • 4.4 Maintenance work can take place on working days as well as on Sundays and public holidays in the time window from midnight to midnight.
  5. Online usage aids
    • 5.1 BMC shall provide the customer with user aids in German within the software.
    • 5.2 If the software is updated in accordance with the contract, the usage aids shall be adapted accordingly.
    • 5.3 The customer is authorised to download, save, print and reproduce a reasonable number of the usage aids for the purposes of this contract, while retaining any existing property right notices. In all other respects, the provisions of para. 7 for the software shall apply accordingly to the usage aids.
  6. Storage space for application data; exemption
    • 6.1 The performance obligations of BMC with regard to the storage space are limited to the provision of the storage space for contractual use by the customer and the backup of the application data. BMC undertakes to take suitable, state-of-the-art precautions against data loss and to prevent unauthorised access to the customer’s data by third parties. To this end, BMC makes backups at least daily. Beyond this, BMC shall not be subject to any safekeeping or custody obligations. The customer is responsible for compliance with retention periods under commercial and tax law.
    • 6.2 The customer undertakes to store only such data and content on the storage space provided whose provision, publication and use in the software or on the server of BMC does not violate applicable law, official requirements or the rights of third parties. The customer shall indemnify BMC on first demand against all claims asserted against BMC by third parties due to a breach of sentence 1 by the customer. In the cases of sentence 2, the customer shall also reimburse BMC for the costs of reasonable legal action.
    • 6.3 Furthermore, the customer undertakes to check external data and information for viruses or other harmful components before uploading them to BMC’s server and to use state-of-the-art measures (e.g. anti-virus programmes) for this purpose.
    • 6.4 The customer is not authorised to allow third parties to use the storage space provided by BMC, either for a fee or free of charge.
  7. Rights of use to the software
    • 7.1 BMC grants the customer a simple, non-transferable and non-sublicensable right to use the software for the duration of the contract in accordance with the provisions in the order and (in addition) in this Section 7. 7 in addition.
    • 7.2 The customer may only make the software accessible to third parties to the extent that the contractual use of the software makes it necessary to open access. The customer is not permitted to open up access beyond the contractual use, in particular by selling, giving away, lending, renting, public reproduction or sub-licensing of the software.
    • 7.3 Reproduction or reworking of the utilisation aids beyond the scope described in Section 5.3 is not permitted, unless the law authorises such reproduction or modification due to the integration of the usage aids into the software in accordance with § 69c No. 2 UrhG.
    • 7.4 If the customer violates one of the provisions in para. 7.1 and/or para. 7.2 for reasons for which the customer is responsible, BMC may block the customer’s access to the software and/or the application data after prior notification of the customer, if the violation can be demonstrably remedied as a result.
    • 7.5 For each case in which the customer culpably enables the use of the software by unauthorised third parties, the customer shall pay an appropriate contractual penalty, the amount of which shall be determined by BMC at its reasonable discretion and shall be reviewed by the competent court in the event of a dispute. The contractual penalty shall accrue anew for each month of infringement. The assertion or payment of the contractual penalty does not preclude BMC from asserting a claim for injunctive relief or for damages in excess of the contractual penalty against the customer. A forfeited and paid contractual penalty shall be credited in full against such damages. Further rights of BMC remain unaffected.
  8. Obligations of the customer to co-operate and provide information
    • 8.1 The customer has informed himself about the essential functional features of the software and bears the risk as to whether these correspond to his wishes and requirements; in case of doubt, the customer must seek advice from BMC employees or from expert third parties.
    • 8.2 Setting up a functional hardware and software environment for the software is the sole responsibility of the customer.
    • 8.3 The customer shall test the software thoroughly for freedom from defects and for usability in the existing hardware and software configuration before it is put into productive operation. This also applies to software that the customer receives under warranty.
    • 8.4 The customer shall observe the instructions provided by BMC for the installation and operation of the software; the customer shall inform himself at regular intervals via the information pages displayed within the software about current information (e.g. on software updates, operation, security aspects) and take these into account during operation.
    • 8.5 The customer shall perform all acts of co-operation required for the execution of the contract without being requested to do so and at his own expense. Insofar as BMC has further performance obligations beyond the provision of the software, the customer shall co-operate to the necessary extent free of charge, e.g. by providing employees, work rooms, hardware and software, data and telecommunication facilities.
    • 8.6 In particular, the customer is obliged to
      • 8.6.1 to take the necessary precautions to prevent the use of the software by unauthorised persons. In particular, the customer shall take suitable protective measures (e.g. password hardness, passwords on his computers, burglary protection) and regularly check available usage logs and, if necessary, block existing accesses (e.g. after employee changes) to ensure that no unauthorised third party can access the software. The customer shall inform BMC immediately if there is a suspicion that the access data and/or passwords may have become known to unauthorised persons;
      • 8.6.2 to create and maintain the access, system and functional requirements for the use of the software set out in the order;
      • 8.6.3 to the extent reasonable, to create and maintain other access, system and functional requirements necessary for productive use of the software on the part of the customer;
      • 8.6.4 to ensure that the users authorised to use the software on the customer’s side are sufficiently familiar with the operation of the software. In particular, the customer shall train the users in the use of the software to the extent necessary;
      • 8.6.5 to ensure that (e.g. when transmitting third-party information to the contractual servers) all third-party rights to material used by it are observed;
      • 8.6.6 to obtain the necessary consent of the respective data subject in accordance with the data protection regulations, insofar as it collects, processes or uses personal data when using the software and no statutory authorisation applies;
      • 8.6.7 to check data and information for viruses before sending them to BMC and to use state-of-the-art virus protection programmes;
      • 8.6.8 as far as technically possible and reasonable, to send user data only in encrypted form;
      • 8.6.9 authorised users to comply for their part with the provisions of the contract concluded with BMC concerning the use of the software;
      • 8.6.10 not to make any changes to the software that would result in the software no longer working.
  9. Material defects and defects of title in the software; liability for initial defects and third-party rights; other deficiencies in performance
    • 9.1 The customer must notify BMC immediately of any defects in the software.
    • 9.2 The parties shall notify each other immediately in writing if claims are asserted against them in connection with the software.
    • 9.3 BMC shall only be liable for defects in the software that already existed when the contract was concluded if BMC is responsible for these defects.
    • 9.4 Cancellation of the contract in accordance with § 543 Para. 2 No. 1 BGB (German Civil Code) due to failure to grant use in accordance with the contract is only permissible if BMC has been given sufficient time to rectify the defect and this has failed. Failure to rectify the defect shall only be assumed if it is impossible, if BMC seriously and definitively refuses to do so or delays it in an unreasonable manner or if it is unreasonable for the customer for other reasons.
    • 9.5 The customer may not reduce the current rental payment in the event of defects in the software. Any existing right of the customer to reclaim rents paid subject to reservation shall remain unaffected.
    • 9.6 Cancellation due to an insignificant impediment to contractual use is excluded.
    • 9.7 BMC shall not be liable for any infringement of third-party rights by the customer if and to the extent that this infringement results from exceeding the rights of use granted under the contract. In this case, the customer shall indemnify BMC against all third-party claims upon first request. In the cases of sentence 2, the customer shall also reimburse BMC for the costs of reasonable legal action.
    • 9.8 Otherwise, the customer may only claim damages in accordance with para. 22 demand compensation.
  10. Provision of the BEAM MY CAR API
    • 10.1 If agreed with the customer in individual cases, we shall provide the customer with the BEAM MY Car API (hereinafter referred to as the “API”) in order to connect the customer’s existing ERP system with our software.
    • 10.2 The utilisation period of the API is limited to the contractual term for the use of the software.
    • 10.3 The source code of the API is not part of our service.
    • 10.4 The quality of the API provided by us is conclusively determined by the service description in the order. We do not owe any further quality of the API.
    • 10.5 We provide our service by making the API available on the Internet and informing the customer accordingly.
    • 10.6 The provisions in the above para. 3 to 9 apply accordingly to the provision of the API.
  11. Dealing with the software and/or API after termination of the contract
    • 11.1 If and insofar as the contract regarding the software and/or API is terminated (e.g. by (partial) cancellation), the customer is entitled to export its application data and uploaded data stored on the server. The customer is obliged to carry out data exports in accordance with sentence 1 before the expiry of 30 days after the end of the contract. If it is unreasonable for the customer to carry out the data export within the period according to sentence 2, BMC shall grant a reasonable extension of the deadline upon written request. After expiry of the deadline according to sentence 2 and any extension of the deadline according to sentence 3, BMC is authorised – subject to statutory retention obligations applicable to BMC – to delete the application data on the server so that data export is no longer possible.
    • 11.2 After termination of the contract, the customer shall, unless use is required for the data exports permitted under Clause 10.1, terminate the use of the software and/or API and, at BMC’s discretion, immediately return or destroy any backup copies made.
  12. Service Level Agreement; scope and delimitation
    • 12.1 If expressly agreed with the customer in individual cases, BMC shall provide the customer with support and update services (hereinafter referred to as “Support and Update Services”) outside the statutory liability for defects in accordance with the further provisions under this section. 12 as well as the provisions under Sect. 13 up to and including para. 17.
    • 12.2 The support and update services always include the following services:
      • 12.2.1 Handling of errors that occur during the proper use of the software (Clause 13hereinafter referred to as “Error Handling”);
      • 12.2.2 Provision of updates to the software (Clause 14);
      • 12.2.3 Consultancy and support services in connection with malfunctions of the software (Clause 15hereinafter referred to as “Support”).
    • 12.3 The support and update services also include the handling of errors or other defects that become known in the software independently of its use by the customer.
    • 12.4 Existing claims for defects on the part of the customer are not part of the support and update services and remain unaffected.
    • 12.5 Not included in the support and update services:
      • 12.5.1 Services for software that is not used under the conditions of use specified by BMC;
      • 12.5.2 the adaptation of the software to a changed hardware or software environment, including adaptation to changed operating systems;
      • 12.5.3 the application and customisation of interfaces and APIs;
      • 12.5.4 the handling of errors caused by the customer or third parties, including malfunctions caused by third-party software;
      • 12.5.5 Services for software that has been modified by programming work not carried out by BMC or its vicarious agents;
      • 12.5.6 Services for computer programs, hardware or parts thereof that are not part of the software;
      • 12.5.7 Services for the software for which updates or other bug fixes provided by BMC have not been installed, insofar as the reported error has already been corrected therein, unless the installation is unreasonable for the customer for reasons for which he is not responsible;
      • 12.5.8 Services that can be provided at BMC’s registered office but are provided at another location at the customer’s request;
      • 12.5.9 the instruction and training of software users, and
      • 12.5.10 Services that become necessary because the customer does not fulfil his obligations and duties in accordance with these GTC.
    • 12.6 Insofar as the subject matter of the agreement with the customer is the provision of the API, the provisions of this section shall apply. 12 as well as the provisions under para. 13 up to and including para. 17 for the API accordingly.
  13. Error handling under the Service Level Agreement
    • 13.1 An error exists if the software does not have the aforementioned functionality in the system environment contractually intended for it and when used as intended and this has more than an insignificant effect.
    • 13.2 Error handling includes localisation of the cause of the error, error diagnosis and services aimed at rectifying the error (in particular security patches and bug fixes for the software). Error handling is carried out with the care customary in the industry.
    • 13.3 Error handling services can, at BMC’s discretion, also be provided by means of a bypass or update delivery and, after consultation with the customer, also by delivery of an upgrade or a new version. However, in the absence of any express agreement to the contrary, the customer shall not be entitled to the delivery of an upgrade or a new version.
    • 13.4 Error handling only includes the latest version of the software available to the customer.
    • 13.5 Error handling is carried out at the customer’s premises, at the software installation site or by remote access via the Internet, at BMC’s discretion.
    • 13.6 Errors in the Software must be reported by the Customer to Support (Clause 15).
    • 13.7 After receipt of a sufficiently specified error description, which includes error behaviour, affected components of the software and steps already taken, BMC shall assess the severity of the error at its reasonable discretion and begin error handling within a period of time appropriate to the severity of the error. BMC shall inform the customer of the expected time required for error handling.
    • 13.8 In the event of minor errors in the software that do not impair its operation, the handling of the error can be postponed by providing software at the next suitable time at which BMC will make this available on the basis of internal planning or agreements with the customer. If this date is more than three months in the future, BMC shall inform the customer of this.
  14. Updates and upgrades under the service level agreement
    • 14.1 BMC endeavours to continuously develop the software in order to adapt it to technical developments. The further development of the software can lead to an extension and/or modification of these contractual objects with the result that smaller new functionalities are available, existing functionalities are optimised in the process and/or the user guidance or the data management is adapted to the state of the art. There is no entitlement to a specific further development.
    • 14.2 Updates are made available to the customer without further payment obligations as part of the software on the server.
    • 14.3 Upgrades of the software that provide basic new functionalities are not included in the free improvement. If an upgrade of the software is available, BMC shall submit an offer to the customer for its use.
  15. Support for the customer under the service level agreement
    • 15.1 BMC shall support the customer in the event of software errors by e-mail, by telephone and via the online usage aids in the software to a reasonable extent, unless a specific scope of support is expressly stipulated in the order.
    • 15.2 Unless otherwise agreed, support shall be provided to the customer during BMC’s operating hours Monday-Friday, with the exception of public holidays in Saxony, Germany, from 10:00 a.m. to 5:00 p.m. Central European Time.
  16. Cooperation and the customer’s duty to co-operate under the service level agreement
    • 16.1 BMC and the customer undertake to cooperate closely and efficiently, for which the personnel, organisational, professional and technical responsibility of the customer is also essential, in particular
      • 16.1.1 to provide proper documents, documentation and information required for the provision of the service, in particular about existing systems, devices, computer programmes and computer programme parts that are to interact with the service to be provided,
      • 16.1.2 to document any errors found in services rendered in a reproducible or at least comprehensible form and to notify BMC immediately,
      • 16.1.3 to make available at its own expense facilities, equipment and personnel suitable for co-operation, insofar as necessary for the provision of services,
      • 16.1.4 to fulfil the (cooperation) obligations in due time, to perform the (cooperation) actions in due time and to submit declarations in due time.
    • 16.2 Before reporting an error, the customer must analyse the software and hardware environment as far as possible to ensure that the error is not due to components that are not covered by this contract.
    • 16.3 If relevant, the customer shall immediately install or carry out updates or other measures provided by BMC to rectify errors.
    • 16.4 The customer shall thoroughly test the maintained software for freedom from defects and usability in the existing hardware and software configuration before using it. This also applies to software received under warranty.
    • 16.5 The customer shall ensure ongoing system management of the system environment in which the software runs. The customer shall maintain its system environment (hardware and software) on an ongoing basis.
    • 16.6 If the customer is in default with the fulfilment of the actions for which it is responsible, BMC’s performance obligations shall be suspended for the duration of the default, which cannot be provided without this action or can only be provided with disproportionate additional expenditure. BMC shall be reimbursed by the customer for any additional expenditure caused by this in addition to the agreed remuneration on the basis of the applicable daily rates/hourly rates. Further statutory rights of BMC remain unaffected.
  17. Rights of use under the service level agreement
    • 17.1 Insofar as BMC provides the customer with computer programs or other works capable of independent copyright protection for use on the basis of this support and update agreement, BMC shall grant the customer rights of use to this in the absence of an express and written agreement to the contrary to the extent that they are granted to the customer in accordance with Clause 7. 7 to the software in accordance with Section 7.
    • 17.2 Sect. 17.1 shall apply accordingly to a claim by the customer for the handover of the underlying source code.
  18. Data backup by the customer
    • 18.1 The customer shall take appropriate precautions in the event that the software does not work properly in whole or in part (e.g. through daily data backups on the customer’s end devices, fault diagnosis, regular checks of the data processing results).
    • 18.2 Unless the customer expressly points this out in advance, BMC may assume that all data of the customer with which BMC or third parties commissioned by BMC may come into contact (e.g. in the context of rectifying defects and errors) are secured.
    • 18.3 BMC shall not be liable for the loss of data to the extent that the damage is due to the customer’s failure to fulfil his obligation under Clause 18. 18.1 to carry out data backups and thereby ensure that lost data can be restored with reasonable effort. In all other respects, para. 22 shall apply.
    • 18.4 The customer is responsible for complying with the customer’s statutory retention obligations (e.g. § 147 AO with regard to the logbook). In particular, application data must be stored in accordance with the provision in para. 11.1 are only available at BMC for a limited time after the end of the contract. In order to fulfil the statutory retention obligations, the customer must therefore generally export the application data and uploaded data to be retained at appropriate intervals and back them up for the legally prescribed periods.
  19. Training; other services
    • 19.1 Further services by BMC, in particular training on the software, must be agreed separately and expressly, unless they are explicitly provided for in the order.
    • 19.2 If remuneration is not expressly agreed in the individual order, such additional services shall be provided against reimbursement of the proven expenditure at the prices generally applicable at BMC at the time of the order.
  20. Remuneration and payment
    • 20.1 The remuneration to be paid by the customer for the services owed by BMC under the contract is set out in the order. If no remuneration has been agreed with the customer, the price lists valid at BMC at the time of the order shall apply; for services that are typically invoiced on a time and material basis (e.g. programming activities, support), the man-day rates/hourly rates valid at BMC shall apply.
    • 20.2 The statutory value added tax is not included in the price and will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
    • 20.3 The prices for deliveries do not include packaging and shipping costs for physical dispatch. In the case of provision for retrieval via the Internet, BMC shall bear the costs of making the services to be provided to the customer available on the Internet, and the customer shall bear the costs of retrieval.
    • 20.4 Unless otherwise agreed in individual cases, the remuneration owed by the customer shall consist of a monthly basic price and an additional, usage-dependent fee per journey. The obligation to pay the aforementioned remuneration shall commence from the operational provision of the software and, where relevant, API by BMC.
    • 20.5 The monthly basic price specified in the order must be paid monthly in advance without deduction. The usage-based fee is billed at the end of each calendar month.
    • 20.6 Unless otherwise agreed in individual cases, the agreed remuneration is due for payment without deduction within 10 days of the invoice date. The date of receipt by BMC shall be decisive for the date of payment.
    • 20.7 In the event of default of payment, the customer shall pay default interest in the amount of nine percentage points above the respective base interest rate per annum. Furthermore, BMC may charge the customer a lump sum of 40 euros. BMC reserves the right to claim higher interest and/or further damages. The lump sum in accordance with sentence 2 shall be offset against any damages owed insofar as the damage is due to the costs of legal action. Any claims for maturity interest, in particular against merchants in accordance with § 353 HGB remain unaffected.
    • 20.8 BMC is entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, BMC becomes aware of circumstances which are likely to significantly reduce the customer’s creditworthiness and which jeopardise the payment of BMC’s outstanding claims against the customer arising from the present contractual relationship.
  21. Term and cancellation
    • 21.1 The contractual relationship has a term of three (3) months. The contract term begins with the conclusion of the contract, unless a later start of the contract is agreed in the order.
    • 21.2 After expiry of the contract term in accordance with Clause 21.1 the contract term shall be tacitly extended by a further one (1) month in each case, unless the contractual relationship is terminated by one of the parties with one month’s notice to the end of the respective contract term.
    • 21.3 The contract can also be terminated by either party without notice for good cause with immediate effect. Good cause entitling BMC to terminate the contract shall be deemed to exist in particular if the customer infringes BMC’s rights of use by using the software beyond the extent permitted under the contract and does not remedy the infringement within a reasonable period of time even after a warning from BMC.
    • 21.4 The cancellation must be in writing. Notwithstanding sentence 1, a cancellation by email is also sufficient on the part of the customer, provided that the customer’s email is sent to info@beam-my-car.de from the contact email address registered with BMC.
  22. General liability
    • 22.1 BMC shall be liable – irrespective of the legal grounds – for damages or reimbursement of futile expenses in accordance with the following provisions under para. 22.1.1 and para. 22.1.2:
      • 22.1.1 In the event of wilful intent or gross negligence, BMC shall be liable without limitation. In the event of simple negligence, BMC shall only be liable for damages arising from the breach of a material contractual obligation (an obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely); in this case, however, BMC’s liability shall be limited to compensation for foreseeable damages typical of the contract.
      • 22.1.2 The obligations arising from Clause 22.1.1 shall not apply if BMC has fraudulently concealed a defect or has assumed a guarantee for the quality of the item or has warranted a property of the item, for damages resulting from injury to life, body or health, as well as in the case of liability under the Product Liability Act.
    • 22.2 Insofar as BMC’s liability is excluded or limited, this shall also apply to the personal liability of BMC’s legal representatives and vicarious agents.
  23. Confidentiality and data protection ; Vehicle tracking
    • 23.1 BMC and the customer undertake to treat all knowledge of confidential information and trade secrets (“Trade Secrets”) of the other party obtained in the course of the initiation and execution of the contract as confidential for an unlimited period of time and to use them only for the purpose of executing the contract. BMC’s trade secrets also include the software and the API (hereinafter referred to as the “SaaS Contract Objects”) and the services provided under this contract.
    • 23.2 The customer shall only make SaaS contractual objects accessible to employees and other third parties insofar as this is necessary to exercise the rights of use and utilisation granted to him. He shall instruct all persons to whom he grants access to SaaS Contract Objects about BMC’s rights to the respective SaaS Contract Objects and the obligation to maintain confidentiality and shall oblige these persons in writing to maintain confidentiality and to use the information only to the extent specified in Clause 23. 23.1 unless the persons concerned are obliged to maintain confidentiality at least to the above extent for other legal reasons.
    • 23.3 The above obligations do not apply to trade secrets that
      • 23.3.1 were already evident or known to the other Party at the time of their transmission by the Party;
      • 23.3.2 have become apparent after their transmission by the contracting party through no fault of the other contracting party;
      • 23.3.3 have been made available to the other Party by a third party in a non-illegal manner and without restriction as to confidentiality or utilisation after their transmission by the Party;
      • 23.3.4 which have been developed independently by one contracting party without utilising the trade secrets of the other contracting party;
      • 23.3.5 which are required to be published by law, governmental order or court decision – provided that the publishing party promptly informs the other party and assists in the defence of such orders or decisions; or
      • 23.3.6 insofar as the contracting party is authorised to use or disclose the trade secrets on the basis of mandatory statutory provisions or on the basis of this contract.
    • 23.4 BMC shall comply with the rules of data protection, in particular if BMC is granted access to the customer’s operations or hardware and software. BMC shall ensure that its vicarious agents also comply with these provisions. If the customer cannot exclude access by BMC to personal data, the parties shall conclude an order processing agreement.
    • 23.5 The customer is aware that BMC offers an optional function within the software with which the customer can geolocalise and track his vehicles from the moment of vehicle pick-up until vehicle delivery by means of GPS (the “additional tracking function”). By using this additional tracking function, the customer warrants to BMC that he will comply with the data protection requirements applicable to him as the controller within the meaning of the GDPR with regard to the data transmitted and processed by him via the software. In particular, the customer must inform the drivers concerned about the data processing processes required by BMC and obtain any necessary consent from these persons before their personal data is processed as part of the use of the additional tracking function or otherwise entered into the software.
  24. Export and import control
    • 24.1 BMC and the customer are aware that the services under the contract may be subject to export and import restrictions. In particular, there may be authorisation requirements or the use of the software, the API or associated technologies abroad may be subject to restrictions.
    • 24.2 The customer shall comply with the applicable export and import control regulations, in particular those of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations.
    • 24.3 The fulfilment of the contract by BMC is subject to the proviso that there are no obstacles to fulfilment due to national and international regulations of export and import law and no other statutory regulations.
  25. Choice of law and place of jurisdiction
    • 25.1 The relationship between BMC and the customer shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
    • 25.2 If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction for any disputes arising from the contract shall be the registered office of BMC in Leipzig, Germany. BMC is also entitled to bring an action at the customer’s registered office and at any other permissible place of jurisdiction.
  26. Final provisions; subcontractors
    • 26.1 BMC is authorised to use third parties (e.g. freelance software programmers, other software providers) as subcontractors.
    • 26.2 The place of fulfilment is Leipzig, Germany.
    • 26.3 Should a provision of these GTC be or become invalid, contain an inadmissible deadline provision or a loophole, the legal validity of the remaining provisions shall remain unaffected. Insofar as the invalidity does not result from a violation of §§ 305 ff. BGB (validity of general terms and conditions), the invalid provision shall be replaced by a valid provision that comes as close as possible to the economic intentions of the parties. The same applies in the event of a loophole. In the event of an invalid term, the legally permissible term shall apply in this case.