Purpose of the terms and conditions
Purpose of these Terms and Conditions is the provision of Evertracker Services by Evertracker GmbH, Lange Reihe 13, D-20099 Hamburg (Evertracker) for the customer.
The contract for the use of Evertracker Services (the contract) is concluded by sending an order confirmation by Evertracker to the customer. This order confirmation also lists the details of the use, such as, in particular, the duration of the contract. The order confirmation can be made without form, e.g. by e-mail.
These Terms and Conditions are an integral part of the contract
Terms and conditions of the customer or third parties do not apply, even if Evertracker does not object to their validity separately on a case-by-case basis. Even if the customer refers to a letter containing or referring to the terms and conditions of the customer or a third party, there is no agreement in it to the validity of those terms and conditions.
The Evertracker Services to be rendered by Evertracker comprise of providing an online platform at the URL www.evertracker.com by means of which the Client shall be able to track the current and past locations of the tracking objects (the Evertracker Platform).
Customer´s Cooperation Duties
The customer shall provide the following services for the use of the Evertracker Services:
Entering the complete and accurate information requisite for use of the Evertracker Services (“required fields”) via the inquiry interface of the Evertracker Platform including, but not limited to, company name, name, and address of sender and recipient;
Obtaining the consents required under applicable data protection law;
(2) The Customer shall be responsible for safeguarding the requirements of use between the Customer and Evertracker up to the transfer point (server output of Evertracker). This shall include, but not be limited to, safeguarding the technical system requirements and establishing the required internet connection. The Client shall comply with state of the art technical and organizational security standards. In particular, the Client shall assure that no viruses and/or malware enter Evertracker’s systems.
(3) The Customer shall not use the Evertracker Services for any illegal purposes and/or in context of air traffic. In particular, the Customer shall not use the Evertracker Services or GPS receivers for detecting the location of identifiable persons and/or to process personal data in any other way to the extent that such processing is not permissible under applicable data protection law.
(4) The Customer shall indemnify Evertracker from any third-party claims including, but not limited to, those of data protection authorities and data subjects under applicable data protection law, based upon any use of the Evertracker Services in breach of this Agreement.
(1) The Customer shall pay to Evertracker the amount written in the order.
(2) Evertracker is entitled to claim payment independently of whether the Evertracker Services have actually been utilized by the Customer.
(3) The fee due for the yearly costs will be invoiced by Evertracker to the Customer with the confirmation of the Agreement.
(4) The fee due for other services and costs will be invoiced by Evertracker to the Customer as agreed in the order.
(5) The Customer shall pay to Evertracker the amount stipulated in the invoice within ten days of date of invoice.
(6) Any and all services of Evertracker shall be exclusive of any value added tax (Umsatzsteuer) applicable by law.
Use of Evertracker Platform
(1) Evertracker shall grant the Customer the non-exclusive and non-transferrable right, limited to the Booking Period, to use the Evertracker Platform exclusively for the purpose of utilizing the Evertracker Services.
(2) The use of the Evertracker Platform shall be made available to the Customer during the Booking Period within a 24/7 time period with the exception of the servicing windows. Evertracker shall make the Evertracker Platform available to the Customer on the transfer date with availability of 98% per year. Evertracker shall reserve the right to disrupt services in order to perform scheduled as well as unscheduled emergency service work. Times in which service work is performed shall not qualify as outage periods within the meaning of the above terms governing availability.
(3) To the extent agreed upon by the Parties, utilizing the Evertracker Services shall be technically dependent upon the entering of a user login and password. Evertracker shall transmit to the Customer the relevant access authorization. The Customer shall at any time have the possibility of changing the password itself. User logins and passwords may be provided by the Customer only to persons authorized by it to receive such and are otherwise to be held in confidence.
(4) The Customer shall have to take necessary precautions for preventing the Evertracker Services from being used by unauthorized third parties; said duty shall include, but not be limited to, securing access data from access by third parties. The Customer shall notify Evertracker without undue delay, if there is suspicion that passwords, to the extent applicable, or other access information could have become known to unauthorized persons. It shall also be incumbent upon the Customer to monitor its staff. It shall be obligated, for its part, to obligate authorized users to comply, for their part, with the terms and conditions of the respective customer contract applicable to them.
(1) In the course of utilizing the Evertracker Services, the Customer has the option to store data necessary for the performance of the Agreement on systems that are operated by Evertracker (the Customer Data)
(2) In this regard, Evertracker shall only be responsible for providing storage space for use by the Customer. The Customer shall be solely responsible for the observance of retention periods under applicable commercial and tax law.
(3) The Customer herby grants Evertracker the right to reproduce and to otherwise use the Customer Data stored by Evertracker for the Customer to the extent that such is necessary for rendering the Evertracker Services.
(4) Moreover, the Customer herby grants Evertracker the right to use the Customer Data – within and after the Booking Period – for purposes of improving the Evertracker Services.
(5) The Customer shall assure between its employees and other affected persons that it has the right and is in a position to grant Evertracker the Customer Data rights granted above.
(6) Upon the termination of this Agreement, Evertracker shall surrender to the Customer, upon request of the Customer, a copy of the Customer Data stored by the Customer with Evertracker. To the extent that the Customer demands such, Evertracker shall surrender the Customer Data at any time prior to the expiration of this Agreement in consideration of the reimbursement of the expenses affiliated therewith. The Customer Data shall be surrendered, with due consideration of the requirements of the Customer, on a typical data carrier or via data transmission in the data format in which the Customer Data are stored on the data server. The Customer shall issue this request at the latest within three months after the termination of this Agreement. Thereafter, the Customer’s right to request surrender of Customer Data shall expire.
(7) Evertracker shall have the right, but shall not be obligated, to delete any Customer Data in its possession fourteen days after the Customer Data have been transferred to the Customer in connection with the termination of this Agreement insofar as the Customer does not give notice within such time period that the Customer Data provided to it are not readable or not complete. The failure to give notice shall qualify as consent to delete the Customer Data.
Representations and Liability
(1) Evertracker shall be obligated to perform the Evertracker Services with the care and diligence of a professional and business person to the best of its knowledge.
(2) Evertracker hereby advises that the location identification does currently not enable a 100% location; it merely shows the approximate location of the tracking object as such is required for the contractually compliant use of the Evertracker Services. In addition, Evertracker hereby advises that the signal required for the use of the Tracking Services may, depending on the location, be interrupted from time to time, for example in specific buildings.
(3) With the exception of willful misconduct (Vorsatz), the liability of Evertracker, regardless of what the reason therefor may be, shall be limited in each contract year to the amount of the fees paid by the Customer to Evertracker in the affected contract year.
(1) Evertracker shall hold in strict confidence all business processes it learns of, including the Customer Data.
(2) The non-disclosure duty shall have an unlimited term beyond the term of this Agreement.
Term and Termination
(1) This Agreement shall be entered into for one year starting with the agreed starting date (Booking Period).
(2) Subsequently, the Booking Period shall extend automatically by consecutive one year periods unless terminated in writing by either Party with three months’ notice to the end of the Initial Term or any extension term of the Booking Period.
(1) Amendments to and restatements of this Agreement, including any covenant for rescinding this written-form requirement, shall require the written-form (Schriftform).
(2)Should any provision of this Agreement be or become ineffective, then such shall not affect the validity of the remainder of this Agreement. Any ineffective provision should be superseded by terms coming as close as possible to the intentions of the Parties and within the scope of the legally possible. The same shall apply in the event that this Agreement proves to contain any loopholes.
(3)The exclusive venue for all disputes between the Parties arising from or in conjunction with this Agreement shall be Hamburg, Germany. This Agreement shall be governed by German law without reference to the German rules on conflicts of law.