Terms and Conditions of Use for motocompano

§ 1 Scope / Definitions of terms

(1) The following Terms and Conditions of Use (hereinafter referred to as “Terms and Conditions of Use” or “General Terms and Conditions of Business”) govern the contractual relationship between us, as GeoMeister AG, Relenbergstraße 59, 70174, Stuttgart, Germany, email contract@geomeister.de (hereinafter also referred to as “GeoMeister”) and consumers in accordance with section 13 of the German Civil Code (hereinafter also referred to as “users”) pertaining to the use of the offer at motocompano.com and/or the corresponding app for smartphones and tablets (hereinafter referred to as “offer” or “motocompano”). Commercial use of motocompano by a user is only possible on request and in line with an individual agreement concluded with us.

(2) A consumer is any natural person who concludes a legal transaction for purposes that predominantly cannot be assigned to either his/her commercial or his/her independent professional activity.

(3) No opposing, deviating or supplementary conditions of users which contradict these Terms and Conditions of Use shall be valid. Such conditions shall only be applicable insofar as we have granted our express consent to them in writing.

(4) In addition, the regulations of the Privacy Statement apply.

§ 2 Establishment of the contractual relationship through registration / motocompano user account

(1) The free versions of the app for smartphones and tablets (hereinafter referred to as the “app”) can be used without registration and without a user account. Registration is necessary in order to use the web version of the product, to obtain a free offline map and to use the various chargeable versions of the app (including by means of an upgrade).

(2) Natural persons over the age of 16 can register to use the product.

(3) The motocompano user account can be created and deleted again by all users themselves. At registration, we request the data specified in the Privacy Statement under (1).

(4) Upon conclusion of the registration process, the user requests us to issue an offer for conclusion of a contract for the use of either the free version or one of the chargeable versions with extended functional scope (including by means of an upgrade) on the basis of these Terms and Conditions of Use. We may issue such an offer by sending an email with a confirmation link to the user. By activating this confirmation link, the user accepts the offer for conclusion of a usage contract with supplementary validity to these Terms and Conditions of Use. The contract for use of motocompano has thereby entered into force.

(5) Upon activation of the confirmation link by the user, the use of motocompano is authorised directly.

§ 3 Establishment of a contractual relationship through booking of chargeable services

(1) Where there is an existing motocompano user account, users can add bookings for chargeable services in the form of a subscription or one-off purchases within the motocompano web version or in the app, in line with the provisions detailed in paragraphs 2 and 3 below.

(2) Booking via the web version
a. Where the user account does not yet have the required address information for settlement, these must be added by the user in the ordering process for the chargeable service.
b. Upon conclusion of the order process, the user provides us with an offer for conclusion of a contract for use of the booked service on the basis of these General Terms and Conditions of Business. We can accept such an offer by requesting that the user make payment for the service, with this request either sent by email or made by forwarding the user to an online payment service. The contract for use of the additional chargeable service has thereby entered into force.

(3) Purchases via the Apple App Store or the Google Play Store
Further functions can be added to the app versions of motocompano through purchases in the Apple App Store (iOS) or the Google Play Store (Android). In addition to these Terms and Conditions of Use, the General Terms and Conditions of Business of the store providers are applicable to the purchase process.

§ 4 Users’ usage rights / Usage rights for content created and adapted by users

(1) With use of motocompano, we shall grant the user a non-exclusive, non-transferable, non-sublicensable right to intended use according the terms of the contract.

(2) The intended use of the free version or the chargeable version with extended functions is based on these Terms and Conditions of Use and the service descriptions on the website motocompano.com and/or the app description.

(3) The usage right shall come to an end upon expiry of the contractual term. The user shall only be permitted to make further use of the service following conclusion of a new Usage Contract.

(4) At no time shall the user hold a proprietary right to the product.

(5) The user grants us a non-exclusive, gratuitous, permanent, worldwide right to intended use of the content adapted by him/her. In particular, this grant of rights comprises the right to duplicate, edit, disseminate, send and make publicly available the content and the edits of said content, individually or as part of a database, for any purpose, whether non-commercial or commercial, insofar as not expressly excluded.

§ 5 Remuneration / Term / Termination / Discontinuation of services / Changes to Terms and Conditions of Use

(1) motocompano is available in a free version with two options and a chargeable version with various options and extended functions. The chargeable version must be booked in the option specified on the offer page, with a term that is to be selected. Moreover, specific services can be released through one-off purchases and payments.

(2) The prices for the use of motocompano are understood to be gross and include the statutory value added tax applicable at the time of the order.

(3) The remuneration shall fall due for payment, without deduction, upon conclusion of the contract. Conclusion of the contract shall take place pursuant to section §2 and §3 and, in the case of a booking made via the web version of motocompano, through dispatch of the order confirmation email by us or through forwarding to a payment provider. Payment of the remuneration for the bookings made on the web version may be made through the payment options specified on the website.

(4) If the user falls behind with his/her payment obligation, we shall be entitled to demand default interest at 5 percentage points above the applicable base interest rate from consumers. In the event of non-payment, payment default shall take effect either without a reminder, 30 days after the due date, or on the day following a reminder. This shall not affect our right to assert further claims for compensation, particularly higher interest, additional costs and reminder charges against consumers, in the amount of € 2 per reminder. Bank costs that we incur as a result of incorrect account data or unauthorised return transfer may be passed on to the user by us, unless the user is not responsible for the incorrect information. The user is entitled to provide proof that we have not incurred any loss, or have incurred a lesser loss.

(5) This does not affect the right to termination without notice where good cause is present. In particular, a good cause is a payment default of more than 35 days, use of motocompano in contravention of copyright law, or any other misuse of motocompano. If we terminate the contract without notice, the user shall not be entitled to any (pro-rata) reimbursement claim for payment that has already been made.

(6) Terminations must be in text form (email) in order to be effective.

(7) We reserve the right to discontinue, adapt or otherwise modify services and/or functionalities of the free version at any time. With the chargeable versions, we reserve the right to modify services and/or functionalities or to replace these with equivalent or identical services/functionalities.

(8) Changes to these Terms and Conditions of User shall be notified to the user by email. If the user does not object to such changes within 2 weeks from receipt of the notification at least in text form, the changes shall be deemed to have been agreed. In the event of a change to the Terms and Conditions of Use, the User shall be advised especially of his/her right of objection and the legal consequences of remaining silent. In the event of a timely objection, the original regulations shall remain in force unchanged, rather than the amendment.

§ 6 Rights and obligations of the user arising from the usage contract

(1) The user has the option of storing data that he/she can access in connection with use of the app in the disk space provided by us for him/her (data hosting). We owe only the provision of disk space for use of the app. No safekeeping obligations or obligations to exercise a duty of care are incumbent on us with regard to the saved data.

(2) Each user of motocompano bears comprehensive responsibility for his/her activities and for the creation of content within motocompano. We are not obliged to carry out data backups of the user data, meaning that all users are requested to backup their own data. Users are responsible for backing up the data on the end device used by means of a personal password.

(3) The user guarantees not to use motocompano in abuse of any laws and therefore to comply with the contractual and statutory provisions, and particularly not to contravene the existing law of the Federal Republic of Germany and of the law in which he/she is resident. Use of the service in abuse of the law is also present if motocompano is used for illegal purposes, insofar as content and/or statements that are illegal, especially those with offensive, discriminatory or pornographic content, or content that glorifies violence, are published, transmitted or otherwise distributed. In order to exclude any use of the service in abuse of the law, the user must also ensure that he/she does not breach any legal provisions or infringe any third-party rights (e.g. infringement of copyright and law of trademarks, personality rights violations and violations of the right to one’s own image) through the transmission of content (texts, images, photos, videos, names, brands, etc.)

(4) In addition, the use of indecent content, ambiguous designations and other representations which are suspected to be illegal but cannot definitively be established as such is prohibited.

(5) User activities that aim to make the motocompano services non-functional or at least to impede their use are prohibited and may be under civil and criminal law. In particular, measures that may influence the physical and logical structure of motocompano are prohibited.

(6) In the event of misuse of his/her account, the user undertakes to indemnify us from all third-party claims that are brought against us in this context.

(7) The user shall protect the access to his/her user account from unauthorised use by third parties and keep his/her password secret. The user shall be liable for any unauthorised culpable use of his/her account that is enabled by his/her behaviour. The user must notify us immediately if he/she has reasonable suspicion for believing that his/her account is being misused.

(8) Furthermore, the user undertakes to inform us of any change in the address data used when placing the order by updating his/her user data.

§ 7 Availability / Rights and obligations of Geomeister arising from the usage contract

(1) For the chargeable motocompano offers, which are generally based on 24 hours a day, we ensure availability of 98% as an annual average (hereinafter referred to as the “operating time”). The operating time does not include periods during which system maintenance or program updating work or work on the system or the database is carried out by us and/or by trustworthy third-party provider, particularly where this is necessary with regard to capacity limits, the security or integrity of the servers or in order to execute technical measures, and this work serves to enable the correct or improved provision of the services. Wherever possible, such work shall be carried out on working days (excluding 24.12 and 31.12 and the public holidays in Baden-Württemberg) between 00.00 and 04.00 CET.

(2) We and/or trustworthy third-party providers shall also be entitled to carry out this work during the operating time insofar as this is necessary in the interest of the users or to maintain operational safety and data security. On such occasions, data retrieval faults may occur, which we will strive to keep to a minimum.

(3) We reserve the right to disclose user information in special cases if we have reason to assume that disclosure of this information is necessary to identify or contact someone or to bring a legal action against someone who (intentionally or unintentionally) is breaching or impeding our rights or proprietary rights or is causing harm to other motocompano users or third parties as a result of his/her behaviour.

(4) We do not take ownership of the external content adapted by users. Where we become aware of unlawful content, we will delete this.

(5) In the event of a breach of these Terms and Conditions of Use or reasonable suspicion of a breach by a user, we shall be entitled to suspend the user in question from using the services, on a long-term or temporary basis, and to delete the content used by him/her and/or sent to him/her without delay. Prior to suspension, we will send the user a warning setting a suitable deadline, unless the breach is so serious that we cannot reasonably be expected to continue the usage contract and said contract can exceptionally be terminated without notice.

§ 8 Warranty (remedy of defects) / Liability

(1) For chargeable usage contracts, we warrant that motocompano complies with the contractual requirements in the case of usage in accordance with the contract and is not afflicted by defects that oppose such application or reduce this, and further warrant that the product is suitable and usable for the intended use and that the usage right granted is free from third-party rights.

(2) The warranty for defects does not extend to damage or loss caused by incorrect or negligent handling, excessive operational demands, unsuitable operating equipment or particular external influences that are not provided for in the contract, as well as by software errors that cannot be reproduced.

(3) With both free and chargeable usage contracts, we are not responsible if access to motocompano is affected by faults that lie outside our technical sphere of influence.

(4) If, in the case of a chargeable usage contract, motocompano is defective, for example if provision of the contractual services is disrupted by circumstances within our area of responsibility, the user must notify us in writing of the defect. Such defects and/or services for which we are responsible shall be rectified without undue delay. If we still do not provide a service in line with the contract even after two appropriate deadlines following justified notification of a defect have passed, the user may terminate the contract. In this case, any amount that has already been deducted will be re-credited to the user.

(5) Claims held by the user to compensation with a free usage contract:
We shall be liable without limitation for damages or the reimbursement of expenses insofar as our vicarious agents and legal representatives are proved to have acted with intent or to have been grossly negligent. Liability for slight or ordinary negligence is excluded.

(6) Claims held by the user to compensation with a chargeable usage contract:
We shall be liable without limitation for damages or the reimbursement of expenses insofar as our vicarious agents and legal representatives are proved to have acted with intent or to have been grossly negligent and in the case of compensation claims asserted by the user due to death, physical injury or damage to health and pursuant to the German Product Liability Act [Produkthaftungsgesetz]. In the case of breach of material contractual obligations committed by us, our legal representatives or vicarious agents due to ordinary negligence, liability shall be limited to the foreseeable, contractually-typical damage or loss at the time of conclusion of the contract, but to no more than three times the annual remuneration. Material obligations are obligations that must be fulfilled in order to attain the purpose of the contract. For the rest, liability for damage or loss caused by minor negligence and due to lost profit, an increase in personnel expenses for the customer, loss of use and/or sales losses shall be excluded.

(7) We shall not be liable for inaccurate or incorrect information or for comments made by motocompano users or other third parties. This shall not affect the user’s statutory rights. Information on POIs (points of interest) and route recommendations in motocompano is based on user information. As user information may be incorrect and transfer, typing and programming errors cannot be entirely ruled out, the user undertakes to check the information before starting to use it.

§ 9 Information on right of withdrawal

In the case of a chargeable usage contract, consumers have a fourteen-day right of withdrawal in accordance with the following provisions:

Instructions on withdrawal

Right of withdrawal
You have the right to withdraw from this contract within fourteen days without stating your reasons. The withdrawal period is fourteen days from the date on which the contract is concluded. In order to exercise your cancellation right, you must inform us (GeoMeister AG, Relenbergstraße 59, 70174 Stuttgart, Germany, telephone: +49(0)711-35-145-841.; email: contract@geomeister.de) of your decision to withdraw from this contract, by by an unequivocal statement (e.g. a letter sent by post, or by fax, telephone or email). You may use the attached sample withdrawal form for this purpose, but this is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we must return all payments that we have received from you, including the delivery costs (with the exception of the additional costs arising from the fact that you selected a delivery type other than the cheapest standard delivery offered by us), immediately and no later than fourteen days from the date on which we received the notification that you were canceling this contract. For this repayment, we will use the same payment method that you deployed in the original transaction, unless expressly agreed otherwise with you; under no circumstances will you be charged fees due to this repayment.
If you have requested that the services provided by us within the framework of the usage contract should commence during the withdrawal period, you must pay us an appropriate amount that corresponds to the share of the services already provided up to the point at which you notified us that you were exercising your withdrawal right with regard to this contract, compared to the total scope of the services specified in the contract.

*** End of the Instructions on withdrawal ***

Model withdrawal form
To
GeoMeister AG
Relenbergstraße 59
70174 Stuttgart, Germany
Email contract@geomeister.de
I/we (*) hereby withdraw from the contract concluded by me/us (*) for
the provision of the following service (*)
Ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only in the case of notification on paper)
Date

§ 10 Storage of contractual text

We will store the contractual text and send you the order data and our General Terms and Conditions of Business by email. You can also view the General Terms and Conditions of Business at any time when you are logged in, at www.motocompano.com. For reasons of security, your order data are no longer accessible via the internet.

§ 11 Set-off / Right of retention

(1) The user shall only have a right to set-off if his/her counter claims have been legally established by a court or are undisputed or have been recognised by us in writing.

(2) The user may only exercise a right of retention when the counter claim on which he/she is basing the right of retention is undisputed, has been legally established or is ready for adjudication, and is founded on the same contractual relationship.

§ 12 Concluding provisions

(1) In the case of users who do not have any general place of jurisdiction in Germany, who relocate their place of residence abroad following conclusion of the contract or whose place of residence is unknown when legal action is brought, the place of jurisdiction for all contracts that are concluded incorporating these General Terms and Conditions of Business shall be the competent court for GeoMeister in Stuttgart.

(2) The place of performance shall be Stuttgart.

(3) The contractual relationship shall be governed by German law with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In the case of contracts with consumers, the mandatory regulations of the legal system of the country in which the customer has his/her ordinary residence shall not be affected (favourability principle).

(4) Claims held by the user may only be assigned with our consent.

(5) Verbal subsidiary agreements, amendments or additions to the purchase contract and the General Terms and Conditions of Business must at least be put in writing in order to be valid. The same applies to this clause stipulating the need for the text form. Amendments that do not preserve the text form shall not be valid. This clause does not affect the validity of individual agreements, irrespective of their form.

(6) In the event that individual provisions of the usage contract including these Terms and Conditions for Use are invalid, in whole or in part, or become so, this shall not affect the validity of the remaining provisions.

(7) If the English legal meaning differs from the German legal meaning of this Terms and Conditions of Use, the German meaning shall prevail.

Stuttgart, 2016-09-22