A. General Conditions
§ 1 General
(1) All goods and services rendered by NAVIGON AG (hereinafter referred to as "NAVIGON") to its customers shall exclusively be based on the following Terms and Conditions of Business in the respectively valid version as at time of the order.
§ 2 Offers, Conclusion of Agreement, Format
(1) NAVIGON's offers are subject to confirmation. By placing the order the customer sends a binding contract offer. The acceptance shall only become binding for NAVIGON through written or express verbal confirmation. The confirmation can be replaced by shipping and delivering the goods.
(2) Within electronic business or in the event of long-distance sale contracts, i.e. contracts which are exclusively concluded via the application of long-distance telecommunication means, NAVIGON shall accept the customer's order at the respectively valid terms and conditions as stipulated on its website. In the event of spelling, printing and computation errors on its website, NAVIGON shall be entitled to rescind from the contract.
(3) Any information contained in promotional brochures, advertisements and on the NAVIGON website, do not represent any obligation on behalf of NAVIGON and may be amended without prior notice. Furthermore, NAVIGON shall reserve the right to change the software/products described in promotional brochures, advertisements and on the NAVIGON website at any point in time, without prior notice.
§ 3 Deliveries
(1) Any possible delivery dates mentioned shall remain non-binding, if nothing to the contrary has been expressly agreed.
(2) The delivery shall be done through dispatch ex warehouse to the address supplied by the customer. The delivery shall be carried out against a flat rate charge for packaging and dispatch; the exact amount shall be shown separately for each delivery.
(3) If NAVIGON should not make delivery on the agreed date, the customer shall be entitled, after expiry of one week, to set NAVIGON an appropriate period of grace (of at least 3 weeks) by stating that it shall withdraw from the contract after fruitless expiry thereof.
(4) Occurrences of war, strike, lock-out, raw materials or energy supply shortages, operational or transportation disruptions, orders by higher authorities as well as all other cases of force majeure, which could disrupt, delay or cause economical non-viability of manufacture or dispatch of goods, shall release NAVIGON from its delivery obligations for the duration and to the extent of said disruption. If such disruption should exceed a time period of 2 months, both parties shall be entitled to rescind. In the event of partial or complete discontinuation of NAVIGON's sources of supply, NAVIGON shall not be obliged to stock up via other upstream suppliers. In such a case, NAVIGON shall be entitled to distribute the quantity of stock at hand by taking into account its own requirements.
§ 4 Prices
(1) All prices stipulated are gross prices (price including VAT). The prices fundamentally include no dispatch, insurance and installation costs; such costs are accounted for separately. The long distance sale contracts will reflect a final price which includes VAT, dispatch and packaging costs.
(2) Upon updating of the internet pages bearing the URL www.navigon.com, all previous prices and other specifications with regard to goods shall become null and void. The respectively valid price quotation as is correspondingly valid at the point in time of binding placement of order shall be authoritative.
§ 5 Withdrawal/Revocation Rights
(1) Only as consumer within the meaning of § 13 "BGB" (German Federal Civil Code) and in cases regulated by law does the customer have the right to make a declaration of intent to revoke its placement of order within 14 days after receipt of goods without giving reasons. The period for revocation shall begin after the receipt of goods and the correct instruction of revocation right. Revocation shall be in the written form or through return of goods ordered. At observance of the revocation deadline, timely dispatch of the revocation or the goods delivered shall be sufficient.
In the event of written revocation, the customer shall be obliged to return the goods already received without delay, however at the latest within a deadline of 7 days to:
NAVIGON AGKundendienststelle / Customer Service Wuerzburg
Berliner Platz 11
D-97080 Wuerzburg
Germany
Costs and risks connected to the return of goods shall be borne by NAVIGON. In the case of an order with a value of up to 40, - EURO, the customer shall bear the costs accruing in connection with such return of goods, unless the goods delivered should not comply with the goods ordered.
(2) The customer shall pay compensation for the value in the event of destruction, usage, sale, strain, processing, transformation or deterioration of the goods. This shall also apply to deterioration based on conventional usage of the goods or return of such goods without original packaging. Thus, please keep in safe custody the original packaging and only use the equipment once you have decided not to exercise your revocation rights. In the event that a customer should have implemented the goods before exercising its revocation rights, NAVIGON shall be entitled to demand compensation for the value from the customer. Liability to pay damages shall not exist, if the customer should merely utilise the goods for testing purposes and no other purposes beyond this purpose.
(3) In the following cases, withdrawal rights in terms of § 5 (1) shall not exist:
- in the event of delivery of goods which are manufactured according to customer specifications, or
- if goods are clearly customised to the personal requirements of the customer or which are not suitable for return due to its characteristics;
- on the supply of software, if the memory card supplied have been unsealed by the customer or any other third party;
- under any other circumstances as set forth under § 312 d, Paragraph 4 "BGB" (German Federal Civil Code) being prevalent.
§ 6 Payment
(1) The purchase price shall be due and payable immediately upon placement of order on a net basis, without deduction. Cheques and bills of exchange shall not be accepted.
(2) Payments shall only be deemed to be in compliance with the contract if the amount is paid in cash or if such payment has been irrevocably credited to one of NAVIGON's bank accounts before expiry of the relevant payment period. Payments made by customers shall first of all be entered as credit against costs, then against interest and finally against the principal claim.
(3) The customer shall only be entitled to defence or retention if the counter-claim should be undisputed or if such claim has been established by way of final and absolute judgement.
§ 7 Retention of Title
(1) NAVIGON shall retain title until full and final settlement of accounts receivable on all goods sold.
(2) Until release, the customer shall neither be entitled to sell, pledge as security, lease or rent out nor to assign such goods to third parties for use.
(3) In the event of integration, processing or inter-connection of the goods under retention of title with other goods which are subject to third party rights, NAVIGON shall automatically acquire co-ownership at the ratio which the effective invoice value of the goods under retention of title bear to other materials.
(4) NAVIGON has the right to dispose of goods where ownership rights have been asserted in any other way, after an appropriate deadline having been set.
(5) In the event of doubt, exercising retention of title rights shall not be deemed to be recession from the contract.
(6) In the event of seizure of the goods under retention of tile by any third party, the customer is obliged to inform NAVIGON thereof immediately and to reimburse NAVIGON for any costs entered into with regard to possible intervention measures being instituted.
§ 8 Warranty
(1) In the event of defect, customer claims against NAVIGON shall be based on the statutory regulations within the legislative deadlines, if the regulations set forth hereinafter should not determine otherwise.
(2) Damage which is caused by improper measures or actions in violation of the contract by the customer upon installation, connection, application or storage, shall not be reason for establishment of any claim against NAVIGON. Such improper measures or contractual violations by the customer shall in particular be governed by the manufacturer's instructions.
(3) In the event of purchase of used objects by consumers, claims of the customer/consumer shall become statute barred after expiry of one year as of receipt of such goods in the event of defect.
(4) If the customer should be a business customer and if the performance ordered is going to be placed for purposes of commercial or individual freelance activities, the customer's claims shall become statute barred upon expiry of one year as of receipt of new goods in the event of defect; the contractor shall not be entitled to any warranty rights on used goods.
§ 9 Liability
(1) Contractual and non-contractual claims for compensation of damages asserted by the customer due to minor negligence of obligations by NAVIGON, NAVIGON's executive staff or other vicarious agents on behalf of NAVIGON shall be precluded, except for major contractual obligations (cardinal obligations).
(2) NAVIGON shall only be liable towards the customer for direct as well as non-predictable damages upon conclusion of the contract in the event of gross negligence on its behalf or gross negligence by its executives.
(3) The sum of liability shall be limited to double the price of goods in the event of non-predictable atypical damages not covered by this Agreement.
(4) The before mentioned limitations shall not apply to damages arising from or in connection with injury to life, bodily harm or health damage. Mandatory statutory liability provisions shall remain unaffected thereby.
(5) It shall be incumbent on the customer to back-up its database before implementation of new software or hardware configurations. NAVIGON shall only be held liable in the event of gross negligence or intent in the event of consequential damages caused by defect data arising due to insufficient securing of data.
§ 10 Software
The assignment of software to customers shall in addition only be carried out under the terms and conditions as set forth in section B hereof.
§ 11 Data Protection
NAVIGON herewith points out to the customer that data recorded within the framework of contractual conclusion shall only be analysed, processed and utilised in accordance with the Federal Data Protection Laws ("BDSG") Telecommunications Data Protection Laws ("TDDSG") for purposes in fulfilment of its obligations.
§ 12 Jurisdiction
Exclusive place of venue shall be Hamburg if the customer is a contractor and if legally permissible, the customer has no general place of jurisdiction locally, a customer should have transferred its residence or habitual domicile to a foreign country after conclusion of the contract or if the address or habitual domicile of the customer should be unknown at the point in time of raising legal action.
§ 13 Miscellaneous
(1) In the event that any or several clauses contained in these General Terms and Conditions of Business should be invalid, the other provisions as set forth herein shall not be affected thereby. Such invalid clause shall be substituted by an appropriate legally valid regulation.
(2) The laws of the Federal Republic of Germany shall be applicable to these General Terms and Conditions of Business and all other legal relations between NAVIGON and the customer under exclusion of UN Purchase Law.
Official Receiving Address:
NAVIGON AG
Schottmuellerstr. 20A
20251 Hamburg
Germany
B. Specific Terms for the purchase of software
NAVIGON - Ender User License Terms (EULA)
§ 1 Scope of Regulations
This Agreement regulates the relations between the user and NAVIGON AG, developer and proprietor of the exclusive utilization rights to the NAVIGON software ("Software") as specified in the order. Subject matter of this Agreement shall be deemed to be copyright interests.
§ 2 Extent of Use
(1) NAVIGON grants the user the non-exclusive right, unlimited by time and location, to utilize the Software at a utilization volume as specified in the order. The licensing includes the right to install and use the Software in accordance with the documentation and pursuant to these regulations.
(2) NAVIGON expressly points out to the user, that a comprehensive utilization of the Software shall only be possible subsequent to appropriate registration thereof.
(3) The user shall ensure that the above mentioned restricted utilization rights are complied with.
(4) Any kind of use which supersedes the framework as stipulated in the Agreement requires the written consent of NAVIGON. In the event that such utilization should be exploited without NAVIGON's consent, NAVIGON shall charge the amount accruing for this extended utilization in accordance with the valid price list at the time. NAVIGON shall reserve the right to assert further reaching claims for compensation of damages. The user shall have the right to prove lower damages.
(5) All the above mentioned utilization rights shall only be transferred to the user after full and final payment of the license fee.
§ 3 Copyright and Protected Rights
(1) The user acknowledges the copyrights of NAVIGON and therewith the exclusive utilization and exploitation rights to the Software. Exclusive utilization and exploitation rights also exist with regard to extended development of the Software or amendments thereto, which NAVIGON has created for the user compliant with order.
(2) Any kind of not explicitly authorized copying of the Software in its entirety or partially, any kind of not expressly authorized passing on of the Software and development of similar Software or segments of such Software or utilization of the contractual Software as master template shall in particular be deemed to be judicially and contractually prohibited.
(3) The user acknowledges the imprint, trademark, trade name and patent rights of NAVIGON to the Software and the relevant appending documentation. The user is forbidden from removing, changing or in any other way camouflaging the copyright notices and identifications pertaining to existing protection rights.
§ 4 Imparting with the Software
(1) The user is permitted to sell or give away the Software and the user manual or any other accompanying materials on a permanent basis to third parties, under the proviso that the acquiring third party is in accord that the contractual terms and conditions at hand shall henceforth be also be imposed on it.
(2) In the event of passing on, the user shall hand over to the new user all copies of the program, including possible back-up copies made or destroy the copies not handed over. As a result of imparting, the former user's utilization rights to the program shall extinguish.
(3) The user is permitted to sell or give away the Software and the user manual or any other accompanying materials to third parties on a temporary basis, if this is not done within the framework of leasing or renting out for gainful purposes, under the proviso that the acquiring third party is in agreement that the contractual terms and conditions at hand shall henceforth also be imposed on it. In the event of passing on, the assigning user shall hand over to the new user all copies of the program, including possible back-up copies made or destroy the copies not handed over. For the period of assignment of the Software to third parties, the assigning user shall have no right to any kind of utilization of the program. Renting out or granting a lease for gainful purposes shall be prohibited.
(4) The user may not assign the Software to third parties if there should be any justified suspicion that such third party could violate the contractual terms and conditions, especially making unlawful copies.
§ 5 Reproduction Rights and Access Security
(1) The user may reproduce the Software, if the respective copying should be necessary for operations. Necessary reproduction shall be deemed to be the installation of the program from the original data carrier to the bulk memory of the installed hardware as well as loading the program into random access memory.
(2) Furthermore, the user is permitted to make copies for back-up purposes. However, fundamentally, only one single back-up copy may be made for safekeeping. The back-up copy has to be identified as such.
(3) In the event that regular storage of the entire data base and the integrated computer programs should be crucial for security purposes or safeguarding a rapid reactivation of the computer system after complete breakdown, the user is permitted to make the necessary number of essential back-up copies.
(4) Further reproductions, which also include release of the program code on a printer as well as photocopying of the manual, may not be made by the user. Any additional manuals required by employees have to be obtained from NAVIGON.
§ 6 Manifold Deployment and Network Integration
(1) The user may use the Software on any hardware available to it. However, in the event that the user should replace the hardware, it is obliged to delete the Software from the hardware utilized up till then. Any isochronous storage, keeping in stock or operation on more than only one hardware unit is not permissible.
(2) The deployment of the entrusted Software within a network or any other multiple workstation computer system is not permissible, if thereby the possibility of simultaneous multiple-shift usage should be facilitated. Should the user select to use the Software within network operations or any other multiple-shift computer system, the user is obliged to abstain from simultaneous multiple use by integration of access protection devices or compensate NAVIGON by payment of special network license fees, which fee is calculated on the basis of the number of users linked up with the computer system. The user shall be informed immediately by NAVIGON with regard to network license fees to be raised in each individual case as soon as the user has informed NAVIGON in writing of the intended network integration and the number of integrated users. The implementation into such kind of network or multiple workstation computer system shall only be permissible after full and final payment of the network licensing fees.
§ 7 Third Party Software
The Software contains third party software products, which has been integrated into the contractual Software or supplied together with the contractual Software. NAVIGON fundamentally only awards such rights which are necessary for general use of the programs as components of the contractual Software and which NAVIGON is authorized to grant. No modification rights or further processing rights are incorporated therein.
§ 8 Decompiling and Amendment of Programs
The user is forbidden from retranslation of the entrusted program code into other code configurations (decompiling) as well as any other kind of inverted development of the diverse manufacturing phases of the Software (reverse engineering) or carrying out program amendments of any kind, unless if such actions should serve purposes of eliminating serious defects, especially such defects which can not be avoided by organisational or any other reasonable measure of remedy. Copyright markings, serial numbers as well as other characteristics serving purposes of identification of the program, may not be eliminated or changed. Any removal of copy protection or similar protective routine measures is prohibited without the knowledge and co-operation of NAVIGON.
§ 9 Final Clauses
(1) In the event that any provision contained in this License Policy should be determined to be invalid or become invalid, the effectiveness of the other regulations shall not be affected thereby. The said invalid provision shall be replaced by a valid provision within the context of the remaining contractual interpretation, which comes as close to the intended economical purpose of such invalid provision.
(2) Amendments and supplements to these regulations have to be in the written form and have to be expressly identified as such. Verbal ancillary agreements shall be deemed to be ineffective. This requirement of written form may only be renounced by written agreement.
(3) If legally permissible, the Parties agree that the laws of the Federal Republic of Germany shall apply to all legal relations arising from these contractual relations, under exclusion of UN Purchase Law.
(4) If the user should be a businessman within the meaning of the Commercial Code, legal entity under public law or special assets under public law, all disputes which may arise in connection with the accomplishment of these contractual regulations shall fall under the jurisdiction of Hamburg.
056-05-007