• Version of September 2020

• § 1 General Information
• § 2 Quotation, Conclusion of Contract
• § 3 Delivery and Services
• § 4 Shipment and Passing of the Risk
• § 5 Prices, Terms and Conditions of Payment, Price Adjustment
• § 6 Contractual Term and Termination of On-Going Contractual Relationships (particularly Repair Plus Light, Repair Plus, Update Plus, Call Plus Flat)
• § 7 Retention of Proprietary Rights
• § 8 Software on HGS Tools
• § 9 Precondition for Subscribing to Other Services
• § 10 Online Dadabase Usage (Particularly via Repair Plus Light or Repair Plus Licences)
• § 11 Telephone Hotline Support for Vehicle Repairs (Particularly Call Plus 30/50 Call Flat)
• § 12 Updating Software for Diagnostic Tools (Especially Update Plus)
• § 13 Combined Service Packages (e.g. Repair Plus Flat and Pro Packages)
• § 14 Guarantee
• § 15 Liability
• § 16 Data Protection
• § 17 Final Clauses

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§ 1 General Information

• (1) These General Terms and Conditions ("GTC") of Hella Gutmann Solutions GmbH ("HGS") shall apply to all quotations, deliveries, repairs and other services (particularly Repair Plus Light, Repair Plus, Update Plus, Call Plus, Professional package) rendered and/or provided by HGS. No later than the time the respective good or service is approved, the GTC shall be deemed to have been accepted by the customer.
• (2) These terms therefore apply to future business relationships as well, even if they are not expressly agreed to again.
• (3) Differing, conflicting or additional terms, even if known to the parties, shall not form part of the contract unless they are expressly agreed in writing by HGS.
• (4) With regard to ongoing payment obligations such as Repair Plus Light, Repair Plus, Update Plus, Call Plus Flat and Professional packages, HGS reserves the right to amend these GTC with the exception of the provisions in § 5 Par. 1 and 6 (prices, terms and conditions of payment, price adjustment) and § 10 Par. 1, 2 and 5 (use of databases) insofar as doing so is necessary for valid reasons - particularly if the legal situation or applicable case law changes or in case of technical changes - and such changes do not place an undue burden on the customer.

§ 2 Quotation, Conclusion of Contract

• (1) Quotations from HGS are non-binding and contain no commercial obligations. Information about services and goods (particularly diagnostic tools), e.g. with regard to colors, weights, dimensions, consumption values, tolerances and technical data, as well as depictions of the same (e.g. drawings and illustrations), is intended as a guideline insofar as the utility for the contractually agreed purpose requires exact accordance. It does not constitute guaranteed features; rather it describes and defines the goods or services. Deviations customary to the trade and deviations that occur due to law or those that provide technical improvements, and replacements of components by equivalent parts, as long as they do not affect the suitability of the object or service for the contractually intended purpose, are permitted.
• (2) Unless it is expressly agreed, we offer no guarantee that our products contain certain features or qualities.
• (3) Acceptances of order and all orders require written confirmation by HGS to attain legal validity. With regard to other services to be rendered periodically such as Repair Plus Light, Repair Plus, Update Plus, Call Plus Flat and Professional packages, electronic transmission (e-mail, telefax, scan) is sufficient to uphold the written form.
• (4) HGS will immediately provide confirmation of orders for goods or services that the customer orders electronically. Acknowledgement of receipt does not constitute binding acceptance of that order. The acknowledgement of receipt may, however, be contained in the same document as the acceptance of the order. If the customer requests it, we will send these GTC by e-mail.

§ 3 Delivery and Services

• (1) Delivery dates and deadlines for service provision are subject to change and apply with reservation of receiving deliveries ourselves. The customer will be immediately informed of the unavailability of the ordered goods or services. Any return service that may have been already rendered by the customer shall be reimbursed immediately.
• (2) HGS shall not be liable if we are unable to provide a service or deliver, or if delivery is delayed due to force majeure or other events that are not foreseeable at the time the contract is concluded (such as operating trouble of any kind, difficulties in obtaining materials or energy, transport delays, strikes, legal lockouts, labour shortages, shortages of energy or raw materials, difficulty in obtaining necessary regulatory approvals, regulatory measures or the failure of suppliers to deliver correctly and in a timely manner), in cases where we are not at fault for such acts or events. If such events significantly hinder HGS or make delivery or performance impossible, and the hindrance is not of a temporary nature, HGS shall be entitled to withdraw from the contract. For hindrances of a temporary nature, the periods and/or deadlines for delivering the goods or rendering the services shall be extended by the duration of the hindrance plus a reasonable start-up period.
• (3) HGS shall be entitled to render partial deliveries and partial services as well as to separately bill for them if
  • - the customer can make use of part delivery or part performance of services in the context of the contractually intended use,
  • - delivery of the remaining ordered goods and/or provision of remaining services is ensured and
  • - the customer does not incur any significant additional expenditure or costs, or HGS agrees to assume these costs.
• (4) The legal requirements shall apply in the event of a delay in the delivery of goods or performance of services. However, HGS shall be liable for payment of damages only as set forth by the provisions of § 15 (Liability).
• (5) If the customer unduly delays their acceptance of the goods for more than two weeks after receiving notification of their readiness, HGS may withdraw from the contract and claim damages after setting a grace period of an additional two weeks.

§ 4 Shipment and Passing of the Risk

• (1) Goods are delivered ex warehouse of HGS (Ihringen or Erwitte). The customer bears the expense and risk for shipping the ordered goods. HGS shall exercise due discretion in deciding the route and manner of shipment.
• (2) The risk of accidental destruction or loss of goods by accident is passed to the customer upon transfer of the goods, or in the case of forwarding transactions, when the goods are delivered to the forwarding agent, the freight carrier or other person or organization designated as responsible for carriage. The same provision applies if the parties have agreed to delivery with carriage paid.
• (3) If shipment is delayed at the customer's request, the goods shall be stored at the customer's risk from the date the customer is informed that they are ready. The customer bears any cost incurred due to the delay (in particular, storage fees).
• (4) If deliveries are insured for transport in the customer's favor, the insurance will be contracted for the customer and at the customer's expense. The customer must always submit complaints related to shipping damage directly to the shipping company within the required period of time.

§ 5 Prices, Terms and Conditions of Payment, Price Adjustment

• (1) The prices listed in the confirmation of order shall apply or, if this information is missing, those set forth in an HGS price list valid at the time the order is received. Unless otherwise agreed, the prices shall be specified in Euro and ex warehouse. Sales tax shall be added to the prices in the applicable statutory amount.
• (2) If the customer purchases goods from HGS, they issue a repair work order for which payment is required in accordance with §§ 631 or subsequent sections of the German Civil Code (BGB), or subscribes to other services that require one-time payment (e.g. Call Plus 30/50), payment must be made to HGS strictly in net form within 14 days after receipt of the invoice. If customer subscribes to services that require periodically recurring payment (e.g. Repair Plus Light, Repair Plus, Update Plus, Call Plus Flat), the customer is obligated to make payment in advance at the beginning of the period.
• (3) HGS shall also be entitled to require prepayment in other circumstances.
• (4) The customer shall be in default upon receiving our first reminder or, if no reminder is received, 30 days after payment is due and the invoice is received as per § 286, Para. 3 of the German Civil Code (BGB). If the customer is in default, HGS is entitled to charge default interest as per § 288 of the German Civil Code (BGB) and a flat amount of EUR 40.00 as per § 288, Para. 5, Clause 1 of the German Civil Code. We reserve the right to claim further damages.
• (5) The customer may offset a counterclaim or withhold payments associated with such assertions only insofar as the counterclaims are undisputed or legally binding.
• (6) If, as part of ongoing payment obligations (see § 1 Para. 4), the costs incurred by HGS increase (particularly necessary maintenance costs, costs for further development of the technical infrastructure, license fees for third-party plants), HGS is entitled to pass on the increased costs to the customer in an amount equal to the increased costs. The price adjustment shall be preceded by three months' written notice. The customer shall be entitled to withdraw from the contract without notice up until the date the price adjustment takes effect.

§ 6 Contractual Term and Termination of On-Going Contractual Relationships (particularly Repair Plus Light, Repair Plus, Update Plus, Call Plus Flat)

• (1) The contract shall begin on the first of the month following the date specified on the order form. Example: If the order form was signed on 2017-07-15, the contract shall begin on 2017-08-01.
• (2) The contract shall have a minimum term of 12 months and shall be extended by 12-month periods if it is not terminated by one of the parties to the contract giving 3 months' written notice before the end of the contract period.
• (3) A revision of the contract takes place when additional license components are ordered, resulting in a new contract period and notice period. (Exceptions: Call 30, Call 50 and HGS Plus licenses acquired via leasing.) Example: Beginning of the contract for the first license is 2017-08-01. As a result, the contract extends to at least 2018-07-31. If the customer subscribes to an additional license effective 2017-10-01, the contracts for existing licenses shall, in each case, have their duration adapted to the most recently acquired license or license extension, thus for a duration lasting until 2018-09-30.
• (4) The right to termination for cause shall remain unaffected by the stipulations in Para. 2 and 3. In particular, cause entitling HGS to terminate shall exist if:
• a) The customer is in arrears despite a reminder having been issued
• b) the Customer and/or the parties with user rights in accordance with § 10 Para. 1 uses/use the HGS online database or the diagnostic software in violation of the agreement or provides/provide the access data to unauthorised third parties,
• c) The financial circumstances of the customer worsen significantly, which would probably result in the customer being unable to meet their payment obligations, especially if the customer stops payments or if debt enforcement is levied on their assets

§ 7 Retention of Proprietary Rights

• (1) HGS retains ownership of goods purchased by the customer until complete payment is received for all claims from the ongoing business relationship with the customer.
• (2) The customer is obligated to handle the goods with care until the passage of proprietary rights occurs. If maintenance and inspection work are required, the customer must perform these tasks regularly at their own expense.
• (3) The customer may not pledge or transfer ownership of the goods while HGS retains the proprietary rights. The customer is obligated to immediately notify HGS of any third-party access to the goods, such as by lien, or any damage to or destruction of the goods. The customer must notify HGS immediately if possession of the goods or the customer's registered office changes.
• (4) In case of the violation of the aforementioned obligations, HGS shall be entitled to rescind the agreement and demand the return of the goods.
• (5) The customer is entitled to resell the goods during the normal course of business. The customer hereby assigns to HGS all claims, to the full amount of the invoice, which it obtains through resale to a third party. HGS accepts the transfer. After this transfer, the customer remains authorized to collect the debt. HGS reserves the right to collect the debt itself if the customer fails to properly meet their payment obligations and is in default of payment. The customer is obligated to give HGS requested information on the goods HGS owns and the claims assigned to HGS. At the request of HGS, the customer must immediately notify the debtors of the respective assignment. The customer must notify HGS immediately regarding encroachments or assertions of third parties with respect to goods owned by or assigned to HGS, including all necessary information regarding the third party. The customer bears any costs from defending against such encroachments. At the same time, the customer shall notify the third parties that the retention of proprietary rights has been extended.

§ 8 Software on HGS Tools

• If the customer purchases HGS tools with preinstalled software, the customer is granted a saleable, non-exclusive, non-sub-licensable right to use the software installed on the tools. Use according to contract includes installing, loading, displaying and running the installed software on the HGS tool for which it is intended.

§ 9 Precondition for Subscribing to Other Services

• (1) The Customer must hold a current Update Plus licence (cf. § 12) in order to be able to book other miscellaneous services. Example: A booking of Repair Plus is possible only if the Customer holds an Update Plus licence.
• (2) The provision in Para. 1 shall not apply to the booking of a Repair Plus Light Stand Alone licence. In this case, no current Update Plus licence shall be required.

§ 10 Online Dadabase Usage (Particularly via Repair Plus Light or Repair Plus Licences)

• (1) Online databases run by HGS are accessed on the Internet using access data provided by HGS (Repair Plus Light) or using special software (Repair Plus) installed on specific diagnostic tools (e.g. mega macs 66). Aside from the customer, only those natural persons that have a service, working or training relationship with the customer are authorized for access. The customer is obligated to ensure compliance with the terms and conditions of use listed below for authorized users.
• (2) The HGS online database allows the customer to conduct research on their computer via the search interface provided by HGS (e.g. with Repair Plus Light) or via specific HGS diagnostic tools (e.g. mega macs 66 in combination with Repair Plus). HGS indicates that it relies on the provision of correct data and information from third parties, primarily vehicle manufacturers. In order to ensure that the information in the database is as current as possible, HGS reserves the right to make modifications for the following purposes:
• a) to improve the online database and its usage forms or to adapt it to the current state-of-the-art technology,
• b) to change the contents in the online database if this is required for the correction of errors, for the completion or the updating of the contents,
• c) to optimise the online database from a programtechnology perspective or
• d) To comply with licensing conditions
• If one of the possible modifications from a) through d) has a substantial negative impact on the scope of services provided to the customer, the customer can either request a price reduction or withdraw from the contract without notice. The customer is only granted this right of termination for a period of six weeks from the modification in accordance with a) through d).
• (3) The usage right grants access to the HGS online database, searches within the database, downloads and the right to print search results. Any other use is prohibited, unless it constitutes a one-time, non-systematic reproduction or other use of a database element that is irrelevant in terms of type and scope.
• (4) Assuming the customer pays the remuneration owed, the customer and the users authorized in accordance with Para. 1 shall receive the ordinary, non-exclusive, non-sub-licensable usage right to the HGS online database that cannot be transferred to third parties and is limited to the term of the contract. This does not entail any right to acquisition of the contents or products themselves. All intellectual property rights (especially those in §§ 2, 4 Para. 2, 69a et seq. and 87a Para. 1 of the UrhG (German Copyright Act)) and other rights to contents, products and supplementary documents are reserved for HGS.
• (5) The following conditions also apply to use of the online database on a commercially available computer (especially when using Repair Plus Light): The respective technical preconditions for which the Customer is responsible can be retrieved from the HGS website, which is currently www.hgs-data.com. The right to make modifications to the technical requirements for use of the HGS online database is reserved. The stipulations in Para. 2 also apply. The customer must keep the access data confidential and ensure that other authorized users also comply with this obligation in accordance with Para. 1. The customer must prevent unauthorized third parties from using the access data. If the customer gains knowledge of misuse of the access data, the customer must notify HGS of this misuse immediately. HGS is authorized to block access to the HGS online database until it has been demonstrated that the unauthorized use has stopped. During this period of blocked access, the customer is freed from their liability to pay in accordance with § 5 Para. 2, but is liable to HGS for any damages resulting from unauthorized third-party use for which it is at fault.
• (6) In case of the expiration of the Repair Plus Light or Repair Plus licences, any usage right shall be expire both for the online services as well as also the usage right for the technical data stored locally on the device.

§ 11 Telephone Hotline Support for Vehicle Repairs (Particularly Call Plus 30/50 Call Flat)

• (1) HGS offers a paid technical hotline that provides the customer with expert support with technical inquiries about vehicle repairs (known as "Call" services).
• (2) If the customer subscribes to a certain number of technical hotline inquiries (e.g. Call Plus 30 or Call Plus 50), each call from the customer that relates to vehicles counts as an inquiry. If the customer subscribes to Call Flat, then the customer can make an unlimited number of technical hotline inquiries.
• (3) The fee-based hotline in accordance with Para. 1 can be reached in Germany during the timeframe of Mon.-Fr. from 8:00 a.m. - 5:00 p.m. except for legal holidays throughout Germany as well as 24/12 and 31/12.

§ 12 Updating Software for Diagnostic Tools (Especially Update Plus)

• (1) HGS provides the customer with updated software versions for passenger car and motorcycle diagnostics and for emission analyzers. The updates are not designed to rectify software defects. They primarily make programming improvements or new modifications to the software.
• (2) When the updated software is released, the customer uses the download authorization provided by HGS to install this software on their diagnostic tool. For GM3 tools, updates can be provided by replacing the customer's emission analyzer data carrier for their GM3 tool.
• (3) If the customer does not obtain Update Plus initially, but decides to subscribe to Update Plus at a later date, the customer must pay a fee for any updates that have been released between the purchase of the diagnostic tool and the procurement of Update Plus. This fee is calculated by HGS on a case-by-case basis. Example: When the diagnostic tool is purchased, this tool features software version 1. When the customer decides to get Update Plus, software version 10 is available. In this case, the customer has to pay a fee for updates 2 to 9.

§ 13 Combined Service Packages (e.g. Repair Plus Flat and Pro Packages)

• If the customer subscribes to service packages that include several of the services described in §§ 10 through 12, then the stipulations in §§ 10 through 12 shall apply accordingly.

§ 14 Guarantee

• (1) Unless otherwise agreed in these general terms and conditions or in a specific case, the guarantee shall be based on legal requirements. A separate written agreement must be reached if any other guarantee is to be legal binding.
• (2) The following stipulations apply to the sale of goods, fee-based repair orders and software updates in accordance with § 12 Para. 1:
• (a) A guarantee on wear parts is only offered against obvious manufacturing defects. HGS provides no guarantee against wear and tear due to normal use or against damage caused by improper use, storage or poor workmanship. Wear parts are batteries, rechargeable batteries, fuses, protective film, protective rubber covers, filters, diaphragms, valves, lamps, oxygen sensors, filter pads for fans, gaskets and hoses.
• (b) The guarantee is void if the customer modifies or allows third parties to modify the goods without the consent of HGS, thereby making rectification of the defect unacceptable or impossible. In any case, the customer bears any additional costs caused by the modification that are incurred in rectifying the defect.
• (c) The customer must inspect the delivered goods and/or software updates immediately after delivery or provision. Approval of the delivered goods is deemed to be given if HGS does not receive a notice of defects in writing or by fax within seven working days after delivery or provision with regard to obvious defects or other defects that are detected during an immediate, careful inspection, or immediately in other cases but within seven working days after discovery of the defect or any earlier point in time at which the defect was recognized by the customer during normal use or utilization at the latest. Upon request from HGS, goods subject to the complaint must be sent back to HGS with carriage paid. Para. 2 (c) does not apply to fee-based repair orders.
• (d) If justified and prompt notice of a defect is made, HGS may rectify the defect through free replacement or repair (supplementary performance). If supplementary performance is not possible, if it fails or if it does not occur within the reasonable period set by the customer, the customer can request a price reduction, cancellation of the contract or a reimbursement of expenses (the latter only applies if a fee-based repair order has failed). This also applies if HGS refuses supplementary performance due to disproportionately high costs. The customer shall bear any increase in costs for complying with seller's warranties caused by moving the goods subject to the complaint to a location other than the commercial branch office of the customer after delivery. The customer shall bear any costs arising from unwarranted notices of defects.
• (e) The customer is entitled to claims for damages only in accordance with § 15 (Liability).
• (f) HGS does not provide any guarantee for the delivery of used goods coordinated with the customer in specific cases.
• (3) The following stipulations apply to HGS services described in §§ 10 and 11 (database use and technical hotline support):
• (a) The customer immediately notifies HGS of any defects, malfunctions or damage that occurs.
• (b) If HGS, through own knowledge or owing to the notification by the Customer, becomes aware of defects or disruptions in the HGS online database or the Call Centre, HGS shall eliminate the defect or the disruption within an appropriate timeframe.
• (c) If it is not possible to rectify faults within a reasonable period, the customer can reduce remuneration proportionally or terminate the contract in question (assuming a deadline has been expressly defined and a threat of refusal has been unsuccessful). If HGS is responsible for the fault or malfunction, HGS shall be liable for compensation for damages in accordance with § 15.
• (d) HGS assumes liability only for technical defects within its area of responsibility (i.e. its online database and technical hotline). HGS shall not be liable for the proper functioning of the hardware and computer software used by the customer, nor for the customer's Internet or phone connection.
• (e) HGS shall practice a level of caution in line with the industry standard for selection and maintenance of the data in the HGS online database. Insofar as HGS relies on third parties for the provision of data in the HGS online database and can only inspect these data in the form of random samples, HGS shall not be liable for the correctness, currency and completeness of these data. The stipulation applies accordingly to information provided in the form of technical hotline support.
• (4) The limitation period for defect claims is one year. It begins at one of the following times:
• - In the case of a purchase, at the time of the passing of the risk (see § 4 Para. 2 above), when the goods are received by the customer at the latest
• - In the case of a fee-based repair order, upon receipt of the repaired item by the customer
• - in case of an updated software version, upon the supplying of the new version,
• - In the case of technical hotline support, at the time of the phone call in question
• - In the case of the usage of the HGS online database, with the affected research.

§ 15 Liability

• (1) The liability of HGS for damages on any legal grounds, in particular impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties regarding contract negotiations and tort offenses, insofar as fault is at issue, is restricted pursuant to this section (§ 15).
• (2) HGS is not liable for simple negligence of its executive officers, legal representatives, employees or other agents, unless a breach of material contractual obligations has occurred. Material contractual obligations are obligations whose fulfillment makes the proper performance of the contract possible and on whose compliance the contractual partner may regularly depend. These include the following:
• - In the case of a sale of goods or provision of updated program versions, the obligation of timely delivery of goods or program versions free of significant defects and the duty to advise, duty to protect and duty to care granted to the customer through use according to contract, protection of customer personnel from injury and death or the protection of the customer's property from significant damage
• - In the case of a fee-based repair, the obligation of the plant to manufacture and deliver goods
• - In the case of the accessing of the HGS online database, the obligation to implement reliable operation thereof;
• - In the case of telephone hotline support, the obligation to operate the Call Centre with trained personnel in accordance with the contactability policies prescribed in the agreement.
• (3) If HGS is liable for damages pursuant to § 15 Para. 2, this liability is limited to damages which HGS saw as potential consequences of a breach of contract or which should have been seen had HGS exercised the required duty of care. Consequential damages and subsequent damages are only eligible for compensation if they are typically to be expected in the course of proper use of the goods or use of the data or information provided by HGS.
• (4) If HGS is liable despite the abovementioned limitations, the liability is limited to a total of EUR 20,000.00 per individual case.
• (5) The aforementioned liability exclusions and liability restrictions shall apply in the same scope to the benefit of the bodies, legal representatives, salaried personnel and other vicarious agents of HGS.
• (6) If HGS provides technical information or advice that is not included in the contractual scope of service, such information or advice is provided free of charge and without guarantee.
• (7) HGS is not liable for damages that are within the technical area of responsibility of the customer or third parties, particularly malfunctions in the Internet connection, phone connection or server.
• (8) The limitations expressed in this section (§ 15) do not apply to the liability for willful action, guaranteed features, injury to life, limb or health, or to liability under the Product Liability Act in Germany.

§ 16 Data Protection

• The customer consents to the storage and processing of their personal data for the purposes of performing and implementing the contractual relationship. HGS shall only disclose customer data if legal requirements permit such disclosure or if the customer has agreed to this.

§ 17 Final Clauses

• (1) This contract shall be governed by the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
• (2) All agreements must be in writing. This applies particularly to subsidiary agreements, representations of any kind and other amendments and additions to the contract. This also applies to any waiver of this requirement of the written form. With regard to other services to be rendered periodically such as Repair Plus Light, Repair Plus, Update Plus, Call Plus Flat and Professional packages, electronic transmission (e-mail, telefax, scan) is sufficient to uphold the written form.
• (3) The place of jurisdiction for all disputes arising from the legal relationships to the Customer shall be Freiburg im Breisgau.
• (4) If any provision of the contract with the customer, including these General Terms and Conditions, is or becomes ineffective either as a whole or in part, the validity of the remaining provisions shall not be affected thereby. The completely or partially ineffective stipulation shall be replaced by a stipulation that best approximates the commercial intent of the invalid provision.

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