1. Applicability
a) These Terms of Use govern the use by the contractual partner of the software and hardware components ("Diagnostic Tools") of various manufacturers provided by BOMAG for engine diagnostics or for the diagnosis of BOMAG products as well as their system components.
b) The user agreement between BOMAG and the contractual partner for the use of the Diagnostic Tools is concluded by an order from the contractual partner for the software and hardware components of the Diagnostic Tools as well as a corresponding order confirmation by BOMAG. In any event, these Terms of Use shall apply at the latest upon the commencement of the use of the Diagnostic Tools by the contractual partner. With regard to the use of the Diagnostic Tools by the contractual partner, only these Terms of Use apply. Deviating or supplementary general terms and conditions of the contractual partner are expressly rejected by BOMAG and do not apply. Any agreements between BOMAG and the contractual partner that go beyond these Terms of Use shall be governed exclusively by BOMAG's written order confirmation or express written agreements between the parties.
2. Rights of use
a) BOMAG grants the contractual partner the non-exclusive, non-transferable right to use the Diagnostic Tools in accordance with the provisions of these Terms of Use during the term of the user agreement.
b) The contractual partner may use the Diagnostic Tools exclusively for the purposes of its business and only by appropriately trained persons. The use of the Diagnostic Tools is limited to use with engines installed in BOMAG machines, as well as BOMAG machines and their system components. Furthermore, the use of the Diagnostic Tools must be carried out in accordance with the documentation of the respective manufacturer of the Diagnostic Tools and only for the purposes stated therein. The software and hardware components may only be used together.
c) Any modifications to the software or the hardware components of the Diagnostic Tools are not permitted. No copies may be made of the software or of the documentation belonging to the Diagnostic Tools that are not intended for the use of the Diagnostic Tools in accordance with the contract. The Diagnostic Tools or any component thereof may not be made available to third parties. Reproduction or reverse engineering of the hardware components is not permitted.
d) The respective manufacturer can restrict or extend the use of the Diagnostic Tools at any time. Such a change in the possible use automatically becomes part of the user agreement between the contractual partner and BOMAG. Insofar as further use becomes unreasonable for the contractual partner or further use is no longer of interest to the contractual partner for objective reasons, the contractual partner may withdraw from the contract and receive a refund of the purchase price for the Hardware as well as the usage fees paid, in each case less an appropriate amount for the benefit derived. Notwithstanding the foregoing, a refund of the purchase price is excluded if more than two years have passed since the purchase of the hardware.
3. Purchase price and usage fee
a) The contractual partner pays the agreed purchase price for the hardware components of the Diagnostic Tools. Title to the hardware components will transfer to the contractual partner only after full payment of the purchase price.
b) In addition, the contractual partner shall pay BOMAG an annual usage fee for the use of the software components in conjunction with the hardware components of the Diagnostic Tools.
c) The amount of the user fee is determined by an agreement between the parties or by BOMAG’s order confirmation. BOMAG may adjust the annual usage fee at any time. The adjusted usage fee will take effect from the beginning of the next contract year if BOMAG has notified the contractual partner of the adjustment in writing at least six weeks before the beginning of the next contract year and the latter has not terminated the contract in writing by the beginning of the next contract year on the grounds of the usage fee adjustment.
d) The one-time purchase price and the annual usage fees are due for payment 14 days after invoicing, unless otherwise agreed between the parties.
4. Term
a) The user agreement for the use of the Diagnostic Tools begins on the date of the order confirmation by BOMAG.
b) Unless otherwise agreed, the user agreement shall be concluded for an indefinite period of time, but at least until 31 December of the year following the year in which the contract was concluded.
c) Following the lapse of the minimum contract period, either party may terminate the user agreement with notice of four months to the end of the calendar year.
d) The right of the parties to terminate the user agreement for good cause remains unaffected. In particular, BOMAG shall be entitled to terminate the user agreement for good cause if the contractual partner fails to pay the purchase price or the usage fee on time despite being reminded by BOMAG with a reasonable deadline or if the contractual partner violates its obligations under sections 2 b) and c).
e) Any notice of termination must be made in writing and must be addressed by the contractual partner to the following addresses:
BOMAG GmbH, Subscription Service, Hellerwald, 56154 Boppard or service.subscription@bomag.com
5. Warranty
a) BOMAG guarantees that the hardware components of the Diagnostic Tools are free of defects. The warranty period is twelve months from the date of delivery of the hardware components to the contractual partner. Defects caused by the contractual partner or third parties after delivery to the contractual partner are excluded from the warranty. In the event of defects, BOMAG will replace the hardware components returned by the contractual partner with new parts. No further rights are available to the contractual partner under the warranty with regard to the hardware components.
b) With regard to the software components of the Diagnostic Tools, BOMAG warrants the essential functions of the software. In particular, errors in the software that do not significantly impair the usability of its essential functions are irrelevant. The warranty period for the software components is twelve months. BOMAG will provide the contractual partner with access to any free updates of the software components provided by the respective manufacturer of the Diagnostic Tools.
c) All warranties are limited as provided in these Terms of Use. Information in product descriptions, service descriptions or similar documents does not constitute a guarantee of any particular product property or fitness for any particular purpose, unless expressly agreed between the parties in writing.
d) Strict liability on the part of BOMAG pursuant to Section 536a (1), 1st alternative of the German Civil Code (BGB) due to defects that already exist at the time of conclusion of the contract is excluded.
6. Liability
a) The following regulations conclusively govern both BOMAG's contractual and statutory liability towards the contractual partner.
b) BOMAG shall be liable to an unlimited extent for claims for damages under the German Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health, as well as due to the absence or loss of a guaranteed product property or in the event of noncompliance with any other guarantee.
c) In the event of simple negligence, BOMAG shall only be liable insofar as it concerns a breach of essential contractual obligations, the fulfilment of which is essential for the proper performance of the contract in the first place and on the observance of which the contractual partner was entitled to rely. In all other respects, liability for damages caused by simple negligence is excluded. Section 6 b) remains unaffected.
d) In the event of a breach of material contractual obligations by BOMAG by simple negligence, the obligation to pay compensation is limited to the foreseeable damage typical of the contract. The foreseeable damage typical of the contract is the damage that BOMAG foresaw at the time of conclusion of the user agreement as a possible consequence of a breach of contract or that BOMAG should have foreseen if it had exercised reasonable care. In addition, indirect and consequential damages caused by simple negligence are only compensable to the extent that such damages are typically to be expected when the Diagnostic Tools are used as intended. Section 6 b) remains unaffected.
e) In the event of loss or destruction of data, BOMAG shall only be liable if BOMAG has caused the loss or destruction intentionally, through gross negligence or as a result of a breach of a material contractual obligation. BOMAG's liability for the simple negligent breach of a material contractual obligation is limited to the amount of the damage that would have occurred even if the contractual partner had properly backed up the data.
f) The above provisions on the limitation of liability also apply to the personal liability of BOMAG's employees, legal representatives, or vicarious agents.
g) For the avoidance of doubt, the above provisions are not intended to cause a change in the burden of proof to the detriment of the contractual partner.
h) Claims for damages and claims for reimbursement of futile expenses of the contractual partner shall become statute-barred within one year. With regard to the start of the limitation period, Section 199 (1) of the German Civil Code (BGB) applies. This does not apply to claims for damages and claims for reimbursement of futile expenses due to injury to life, limb or health, in the case of claims under the Product Liability Act and in the event of a breach of a warranted property or a guarantee. Furthermore, this does not apply to claims based on an intentional or grossly negligent breach of duty on the part of BOMAG or a legal representative or vicarious agent of BOMAG.
7. Privacy
a) During the use of the Diagnostic Tools by the contractual partner, the respective manufacturer of the diagnostic tool or BOMAG will have electronic access to engine-specific data, such as operating hours, fault memory, load spectrum, sensor values, country of use, etc., as well as, if applicable, to data relating to the BOMAG machine, such as operating hours, error codes, operating conditions, etc. (hereinafter collectively referred to as "Information"). The contractual partner grants BOMAG a non-exclusive, transferable, unrestricted and irrevocable right of use to use this information free of charge, whereby this granting of rights includes the right to pass on the information to third parties such as customers, dealers and suppliers and to process and use it in connection with the distribution and further development of BOMAG products, provided that such use is exclusively on an anonymised basis and that BOMAG does not use or disclose any personal data of the contractual partner or its customers or their respective employees. The contractual partner also grants the manufacturer of the respective diagnostic tool a right of use of the same content. The contractual partner shall ensure that it is entitled to grant BOMAG the above rights and to provide the information.
b) Insofar as personal data of the contractual partner or from the contractual partner's area is processed by BOMAG prior to the conclusion of the user agreement or during the term of the user agreement, such processing is carried out in accordance with all applicable legal provisions on data protection. Insofar as necessary for the achievement of the purpose of the user agreement, the personal data may also be forwarded to the respective manufacturer of the diagnostic tool and processed there. The contractual partner may at any time make use of the rights to which it is entitled by law. In particular, it can object to the processing of personal data by BOMAG or the manufacturer of the diagnostic tool at any time for the future, which may result in BOMAG not being able to provide all or part of the services under the user agreement.
c) The current version of the general data protection notice of BOMAG can be found on BOMAG’s website at www.bomag.com and will be provided in printed form free of charge upon request.
8. Applicable Law, Place of Jurisdiction, Miscellaneous
a) The law of the Federal Republic of Germany applies. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
b) The exclusive place of jurisdiction for disputes arising out of or in connection with the user agreement is BOMAG's registered office. BOMAG may also bring an action at the place of business of the contractual partner.
c) In the event that any provision of these Terms of Use is or becomes invalid, the validity of all other provisions of these Terms of Use shall not be affected. The invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision as intended by the parties at the time of conclusion of the user agreement. The same applies in the event of gaps in these Terms of Use.