GENERAL TERMS AND CONDITIONS FOR ARRANGING TEST DRIVES AND VEHICLE RENTALS AT THE CUSTOMER’S COMPANY BUTLER SOLUTIONS GMBH AND AT EVENTS OR CAMPAIGNS
- General information
- Conclusion of contract
An order form signed by the company shall constitute an irrevocable, legally binding offer to conclude a contract for the use of the software for the initiation and processing of test drives and rental of motor vehicles (“Test Drive Butler” for short). The offer shall be deemed to have been accepted by Butler Solutions GmbH if it has not been rejected in writing (including by fax and e-mail) or verbally within a period of 4 weeks.
- Subject matter of the contract and scope of services
Butler Solutions GmbH grants a non-exclusive, non-sublicensable and non-transferable right to use the aforementioned software by means of a browser and an Internet connection. The contractual partner’s right of use is granted for its own business purposes of the company or branch office named in the order form. If there are several branches, the license is valid for one of them. If necessary, the contractual partner shall immediately provide all cooperation and/or provision services required for the implementation of the software and undertakes to establish the technical requirements. If this is not successful, or if these cease to apply at a later date, the contractual partner must accept restrictions in usability without this constituting a case of warranty.
The software solution for online appointment and vehicle reservation (“the test drive butler”) is provided “as is”. In particular, Butler Solutions GmbH does not guarantee that the software meets the specific requirements of the contractual partner. The latter is solely responsible for the use of the software, in particular with regard to the selection, input and use of data and the results to be achieved with it. Butler Solutions GmbH does not warrant that the operation of the software will be error-free or uninterrupted. The contractual partner shall not derive any claims from the temporary interruption or restriction of access to the software as a result of necessary maintenance work. Upon confirmation of the completed installation of the software by the contractual partner, it shall be deemed to have been accepted.
There is no entitlement to training or to the provision of a manual or other documentation. Online training and training at the contractual partner’s premises are subject to separate agreement and remuneration.
Defects subject to warranty must be reported by the dealer in writing within an indefinite period of 14 days from the time of delivery or provision of the software, in the event of later detection, within 14 days thereof, stating the exact time and circumstances of the occurrence. A complaint is only relevant if it concerns a reproducible defect and describes the detailed circumstances of its occurrence. Any defects shall be remedied within a reasonable period of time, depending on their severity, by providing and implementing a version of the software that is free of defects;
Alternatively, Butler Solutions GmbH is authorized, at its own discretion, to provide a workaround solution in order to minimize the effects of the defect.
avoid. In the event of defects, Butler Solutions GmbH shall also be entitled to show the contractual partner ways of avoiding errors and – insofar as reasonable in view of the remaining possibilities of use – to remedy the defect later by adapting the software. If there is a significant defect which significantly impairs usability or functionality and which cannot be remedied in an economically justifiable manner within a reasonable period of time, the contractual partner may withdraw from the contract and demand reimbursement of the remuneration already paid by him. The fee paid for the use until receipt of a notice of defects will not be refunded. In the event of faults or damage for which the contractual partner or its employees are responsible and which, for example
The warranty does not cover damage resulting from improper operation, a changed software environment or deviations in the system requirements.
- Responsibility of the contractual partner for lawful use
The contractual partner is solely responsible for all content of the services offered by it using the software (brand, type, equipment, year of manufacture, mileage, date of first registration of the vehicle, etc. in the “Campaigns & Events” module, including event dates, locations, conditions of participation, etc.) and the booking profile. Butler Solutions GmbH is not involved in the specific use of the software by the contractual partner and has no influence on the dates or vehicles made available by the contractual partner or the respective service descriptions of the booking profile. A possible
The conclusion of the contract between the interested party and the entrepreneur takes place exclusively in direct contact between them. Butler Solutions GmbH shall not become a party to any contract for the services offered by the entrepreneur. Their services have no effect on the legal relationship between the entrepreneur and the interested party. The contractual partner is responsible for fulfilling any duties of clarification and information in connection with the prospective conclusion of the contract, in particular those under the Distance and Off-Premises Transactions Act. Butler Solutions GmbH is not involved in the reservation or service offer process. In particular, it assumes no liability that the services offered by the contractual partner can actually be provided or that the appointments reserved by an interested party for test drives or the rental of vehicles will actually be taken up. Butler Solutions GmbH accepts no liability for any misuse of the software (“frustrated appointments”) by alleged interested parties/users.
The contractual partner undertakes to ensure that the fulfillment of the services offered by him does not violate contractual or legal prohibitions and confirms that he is fully authorized to grant rights of use to the vehicles offered and does not violate the rights of third parties – including intellectual property rights – by providing them.
The contractual partner grants Butler Solutions GmbH the following rights with the posting of content
The Customer grants the Customer a transferable, licensable and sub-licensable right of use in the booking profile, unlimited in terms of territory and content and limited in time to the term of this contract, for the purpose of publishing this content in the online reservation solution. The right of use includes in particular the authorization to reproduce, make available to the public or make available and store in databases, as well as processing in whole or in part. The contractual partner shall hold Butler Solutions GmbH responsible for
- Contract term and termination
The contract for the provision of the reservation software is concluded as a subscription for a period of 12 months, if not for the event or campaign product. The subscription is automatically extended by one year and can be terminated in writing (including by fax and email) at the end of each contract year, but for the first time at the end of the second contract year, subject to a notice period of one month to the last day of each month. This does not affect the right to extraordinary termination for good cause. The contractual partner acknowledges that the possibility of accessing its customer data ends at the end of the contract term. He is advised that these must be exported in good time and, if necessary, saved for further use. Butler Solutions GmbH is under no obligation to surrender customer data after the end of the contract.
- Remuneration and billing
For the use of the software, the fee agreed in the order form must be paid for the set-up of the granted module (“Dealer Test Drive”, “Vehicle Rental”, “Butler Combi”, “Campaign” and “Events”) and the monthly system rental. Invoices are issued annually in advance. The fee is due for payment upon invoicing by Butler Solutions GmbH. If a standing invoice is issued, the monthly payments must be made by the 05th day after the invoice date. of each month. In the event of default, interest on arrears shall be charged at a rate of 10% p.a. and the contractual partner undertakes to reimburse reminder and collection charges or standard lawyer’s fees. The contractual partner expressly waives the right to offset its own claims, irrespective of title or legal relationship, against those of Butler Solutions GmbH, or to withhold or reduce services owed, for whatever reason. In particular, any warranty claims shall not entitle the contractual partner to withhold payments.
- Availability of services
Butler Solutions GmbH aims to achieve an annual average availability of 95% with regard to the operation and use of the reservation software. When calculating the percentage availability, the figures are rounded to one decimal place in accordance with commercial principles. The operating hours are 24 hours a day, 7 days a week (24/7). Exceptions to this are downtimes due to circumstances for which Butler Solutions GmbH is not responsible, such as downtimes due to virus or hacker attacks, downtimes due to force majeure (natural disasters, power failures), sabotage or for comparable reasons,
Downtimes due to incorrect operation by third parties, downtimes caused by third parties due to faulty or insufficient maintenance of the hardware and/or software, downtimes in connection with the use of unsupported software, in particular operating systems, browsers and end devices, downtimes due to failures of parts of the Internet, as well as external DNS, routing problems and the like, as well as downtimes due to planned interruptions for maintenance work that fall within announced maintenance windows.
- Technical changes
The contractual partner acknowledges that the reservation software provided is made available as “software as a service”, in which a number of contractual partners use a standardized software product that can be adapted to technical changes and further developed. It is therefore agreed that Butler Solutions GmbH may make changes or adjustments, in particular with regard to changes in the legal situation or jurisdiction, for the purpose of protecting system security or to prevent misuse. In addition, Butler Solutions GmbH is granted the right to take account of technical progress by deleting old functions and replacing them with new functions. In this context, Butler Solutions GmbH undertakes to notify the contractual partner of any changes to the usability and functionality of the software that are not merely insignificantly disadvantageous to the contractual partner, generally one month before they take effect, by displaying them in the back end of the system or in writing (also by fax or e-mail). If such a change jeopardizes the legitimate interests of the contractual partner to such an extent that it can no longer be reasonably expected to adhere to the contract, the contractual partner may terminate the contract by giving one week’s notice until the announced effective date of the adjustment. If the contractual partner does not exercise its right of termination in this respect, the amendment shall be deemed to have been approved.
- Data protection
10.1 Processing of personal data
The Parties acknowledge that under the Contract the Contractor undertakes certain processing activities of personal data. Especially in the phases of booking, billing and data transfer to manufacturers and retailers, the contractor acts partly as a processor and partly as an independent controller. In its role as controller, the Contractor undertakes to comply with all relevant data protection regulations, in particular the GDPR, and ensures that the rights of the data subjects are protected.
10.2 Confidentiality and data protection
Irrespective of the specific role in the various processing phases, the Contractor undertakes to maintain confidentiality and to protect personal data in accordance with the applicable data protection laws, in particular Section 6 of the Data Protection Act. This includes appropriate technical and organizational measures to secure the data.
10.3 Responsibility and duty to inform
The client assumes primary responsibility for obtaining the consent of the data subjects and providing comprehensive information about the processing of their personal data. This includes information about the purposes of data processing, the identity of the controller and the rights of data subjects under the GDPR. The client shall ensure that all necessary consents are obtained in good time and in accordance with the applicable data protection laws.
10.4 Data provision and use
For the purposes of invoicing, data transfer to manufacturers and dealers and for internal purposes such as market analyses and software development, the contractor uses the personal data in accordance with the specified processing purposes and only after obtaining the necessary consent. The Contractor undertakes to use the data anonymously, insofar as this is possible and appropriate, in order to protect the privacy of the data subjects.
- Final provisions
the contracting parties undertake to replace such a provision with a valid provision corresponding to the meaning and purpose of the contract. This also applies to unintended regulatory gaps. This shall not affect the validity of the remaining provisions. For all legal disputes arising from or in connection with the legal relationship between the contractual partner and Butler Solutions GmbH, including the question of the inclusion of these terms and conditions and the conclusion of a contract or its preliminary and subsequent effects, the contracting parties agree to the exclusive jurisdiction of the competent court in 9020 Klagenfurt a.W. Austrian law shall apply to the legal relationship between the entrepreneur and Butler Solutions GmbH, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules. The place of performance for all liabilities and obligations arising from and in connection with this contract shall be the registered office of Butler Solutions GmbH.