PARAMOUNT DATA MANAGEMENT GMBH TERMS AND CONDITIONS
WHEREAS, Paramount Data Management GmbH, Neubruchstraße 4, 85774 Unterföhring, Germany (“Paramount”) has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-user, per parts and per part types per month basis for the purposes of generation, maintenance and distribution of automotive parts product data (“Platform Services”).
WHEREAS, The Customer wishes to use Platform Services in its business operations.
WHEREAS, Paramount has agreed to provide, and the Customer has agreed to take and pay for, Platform Services subject to the terms and conditions of this agreement.
WHEREAS, Paramount may offer to Customer and Customer may order from Paramount cer-tain professional services that are related to Platform Services.
NOW, THEREFORE, the parties agree as follows:
1. AGREEMENT SCOPE
These Terms and Conditions govern the purchase and supply of all Platform Services and any products and services related thereto by Paramount to Customer, as well as all documents and acts, whether of a preparatory or executional nature, that are related thereto, such as requests for quotations, quotations, purchase orders, order confirma-tions and orders, to the entire exclusion of all other terms and conditions, except to the extent that these Terms and Conditions specify otherwise.
The following capitalized terms shall have the meaning set forth below. Other defined terms (whether capitalized or not) used in these Terms and Conditions shall have the meanings set forth elsewhere in these Terms and Conditions.
2.1 “Access Fee” means the monthly fee(s) for Platform Services and Contracted Sup-port, as specified in the applicable Contract. Access Fees are calculated based on number of users, number of Parts and number of Part Types.
2.2 “Access Term” means the term during which the Platform Services are made availa-ble to Customer hereunder, as specified in the applicable Contract. The Access Term commences on the Initial Date.
2.3 “Availability” shall have the meaning set forth in Section 4.1 of these Terms and Con-ditions.
2.4 “Business Day” means a day, other than a Saturday or Sunday, on which banks are generally open for business in Munich, Germany.
2.5 “Contract” shall mean an individual agreement for the purchase of Platform Services and/or Professional Services by Customer from Paramount, which comes into effect upon Customer’s acceptance of a quote as further specified in Section 3 of these Terms and Conditions.
2.6 “Contracted Support” means the email support as specified in Section 7 of these Terms and Conditions.
2.7 “Customer Data” means all data uploaded by Customer to the Platform Service and the data generated by the Customer thereby and attributable to Customer.
2.8 “Initial Date” is the date of activation of Customer’s account on the Server and provi-sion of access data to the Customer.
2.9 “Month” shall mean calendar month.
2.10 “Named User” means any individual for whom there is a user login account permitting such individual to access and use the Software and Platform Services.
2.11 “Parts” means digital images of automotive parts and any other digital data related thereto.
2.12 “Part Type(s)” means a category (categories) of automotive parts as specified by the Auto Care Association in the Product Classification Database (PCdb).
2.13 “Platform Services” means a service providing access via the internet to the Server for use of the Software via a web browser.
2.14 “Professional Services“ means services involving Paramount’s specific expertise, in-cluding but not limited to installation services, automotive data processing, and con-sulting services to be provided by Paramount in accordance with the terms of a respec-tive Contract.
2.15 “Professional Service Fees“ means the fees for Professional Services as specified in the Contract.
2.16 “Server“ shall have the meaning set forth in Section 4.1 of these Terms and Condi-tions.
2.17 “Services” means (i) Platform Services, (ii) Contracted Support and (iii) Professional Services.
2.18 “Software” means the proprietary Paramount cloud based software offered as a ser-vice.
2.19 “Storage” shall mean cloud storage made available by Paramount to Customer on the Server, as specified in the applicable Quotation.
3. CUSTOMER ACCOUNT; CONCLUSION OF CONTRACT; ORDERING PROCESS
3.1 Any use of Services is subject to a creation of a Customer account by Paramount. Paramount may in its own discretion determine whether it accepts an application for the creation of such account. For the creation of an account the applicant must provide certain mandatory information as specified by Paramount. Such information may in-clude the full name and address of the applicant, a value added tax identification num-ber (if applicable), a billing address, a contact person, a valid email address, and any other information reasonably requested by Paramount.
3.2 A contract between Paramount and Customer on the making available of Services for test purposes enters into effect once Paramount and Customer have agreed thereon via email correspondence or other means. A contract between Paramount and Cus-tomer on the making available of Services in consideration of an Access Fee enters into effect once Customer has issued an order as prepared by Paramount. However, in no event shall a contract between Paramount become effective later than upon Cus-tomer’s receipt of the respective Services or of an invoice issued by Paramount for such Services. Any such contract is subject to these General Terms and Conditions and is hereinafter also referred to as “Contract”.
3.3 Paramount offers Services for purchase by business enterprises only. Paramount does not offer products or services for purchase by minors and consumers.
3.4 Except as provided otherwise in these Terms and Conditions, the ordering process includes the following technical steps: First Customer selects the Services Customer wants to order and provides to Paramount any information reasonably required to con-clude and perform an agreement on the making available of Services, including Cus-tomer’s full name and address and telephone number. In a second step Paramount will make available to Customer, on an eSignature platform, an order form (“quote”) for Customer to view and complete (if and to the extent required and technically possible) such order form. At any time during the ordering process Customer may check and, if required, amend all data that Customer has entered through notifying Paramount of the amendments via email or selecting the respective step and clicking the respective but-ton (as applicable). In a third step Customer may order the Services, and a Contract comes into effect, by Customer signing the order through a cloud-based electronic sig-nature tool and clicking the respective order button.
3.5 Paramount may create for, and make available to, Customer a test account for the use of Services for testing purposes (hereinafter referred to as “Test Account”). Any Test Account shall be limited in time as specified by Paramount in its own discretion. The use of Services through a Test Account will not be subject to the payment of Access Fees, and the ordering process set forth in Section 3.4 above shall not apply to a Con-tract on such use.
3.6 Paramount files the terms of the Contract, including a description of Services ordered, information on the applicable fees, and the applicable Terms and Conditions. These terms are available for download and printout at the time Customer orders the Services. Thereafter, such terms will be available either (i) for download and printout on the Server or any other location designated by Paramount or (ii) via email or other means from Paramount upon Customer’s request.
3.7 The language offered for the conclusion of a Contract is English.
3.8 In order to protect the privacy of our customers we are seriously committed to comply with all applicable data protection laws. Any use of personal data is subject to our Pri-vacy Statement as available at pdm-automotive.com/privacy.pdf.
4.1 Paramount shall, subject to the Platform Services’ availability of 99.98% (“Availabil-ity”), make the Software available to Customer during the Access Term. The Software will be hosted on a server operated by either Paramount or a third party authorized by Paramount to host the Software (hereinafter referred to as “Server”). Paramount may at any time reasonably amend, modify, update or upgrade the Software.
4.2 Customer may access the Service via the internet. Such access is subject to an access authorization which may consist of a user name and password or any other authoriza-tion tool as reasonably requested from Paramount.
4.3 Paramount does not owe to Customer the installation or maintenance of an internet connection from Customer’s computer to the exchange node operated and designated by Paramount or its contractors. Subject to reasonable prior notice to Customer, Para-mount or its contractors may change such exchange node at any time.
4.4 Subject to the terms and conditions of theses Terms and Conditions, Paramount hereby grants to Customer, subject to Availability, a non-exclusive, non transferable right to access and use the Software for the Access Term through a web browser based internet connection on the Server solely by Customer’s personnel and solely for Cus-tomer’s internal business needs.
4.5 Customer may upload Parts to the Platform Services and maintain it in the Storage. Customer shall at all times during the Access Term maintain outside of the Server at least one current backup copy of all Customer Data stored on the Server to ensure that the potential for losses is mitigated.
4.6 Customer hereby grants to Paramount and any third party hosting the Software and Platform Services in accordance with these Terms and Conditions a non-exclusive, non-transferable license to reproduce Customer Data to the extent that such reproduc-tion is necessary to fulfill Paramount’s obligations under the Contract. Such license may include the reproduction of data in a reserve data processing center.
4.7 Customer shall not use any Service to provide, market, distribute or make available services to third parties, or otherwise use the same on a “service bureau” basis.
5. ACCEPTABLE USE, SECURITY
5.1 Customer shall not use the Services (i) to offer, for sale or otherwise, or to sell, any illegal or unlawful items or service which would be illegal or unlawful to sell in the juris-diction in which it is sold or offered, (ii) to provision any content into the Storage that contains or constitutes illegal or unlawful content or promotes hate or incitements to violence, or (iii) to perform any act which, directly or indirectly, causes any “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other like form of solicitation. If Cus-tomer becomes aware of any violation of this Section 5.1, Customer shall immediately notify Paramount and provide Paramount with assistance, as reasonably requested, to stop or remedy the violation. In the event that Customer’s use of the Services adversely impact the Services or the systems or content of any other customer of Paramount or third party provider, or may subject Paramount or any third party to liability, Paramount may, in conjunction with any other remedies it may have under the Contract or under statutory laws, suspend Customer’s access to Platform Services and the Software until the issue is resolved.
5.2 Customer shall maintain, and shall procure that any of its personnel accessing the Soft-ware maintain an adequate level of security measures in order to prevent unauthorized access to the Server. If Customer obtains attention of an unauthorized access to the Server, Customer shall promptly notify Paramount and provide Paramount with assis-tance, as reasonably requested, to stop or remedy such access. In the event Customer cannot satisfactorily resolve any issue of unauthorized access, Paramount may, in con-junction with any other remedies it may have under the Contract or under statutory laws, suspend Customer‘s access to Platform Services and the Software until the issue is resolved.
6. PROFESSIONAL SERVICES
6.1 Paramount shall perform for Customer the Professional Services set forth in, and in accordance with, each Contract for Professional Services. Paramount may provide the Professional Services through its employees or qualified contractors.
6.2 In order to facilitate prompt and efficient performance of Professional Services, Cus-tomer and its personnel shall cooperate fully with Paramount and its personnel in all reasonable respects, including providing: (a) information as to Customer requirements; (b) all necessary information regarding Customer’s systems and facilities; and (c) timely access to the required number of Customer personnel possessing the required skills.
7. CONTRACTED SUPPORT
Provided that Customer has paid Paramount the applicable Access Fees, Paramount shall provide to Customer email support during the Access Term. Customer may sent support requests to the email support address designated by Paramount. Paramount will respond to such emails within one Business Day.
8. INTELLECTUAL PROPERTY
All right, title and interest (including all any patent, copyright, trade secret, know-how, or other intellectual property right) in and to the Software and Platform Services are owned by Paramount or its licensors, as applicable, and are protected by intellectual property laws, including copyright, patent, trademark, and/or trade secret laws. Any rights not expressly granted herein are reserved to Paramount and its licensors.
9. FEES, PAYMENT AND TAXES
9.1 Customer shall pay to Paramount the Acess Fees, as stated in the applicable Contract. The first Access Fee shall be due for payment on the Initial Date and be calculated pro rata temporis as of the Initial Date until the end of the then current Month. All subse-quent Access Fees shall be due for payment monthly in advance. The parties may agree in a Contract to an annual payment in advance in consideration of a discount as specified in the Contract.
9.2 If in a certain Month Customer’s use of Platform Services exceeds the permitted max-imum number of Named Users and/or Parts and/or Part Types, Paramount will invoice to Customer, and Customer shall pay to Paramount, usage fees for such additional use as stated in the applicable Contract. Such fees shall be due and payable within thirty (30) days of the date of invoice.
9.3 Paramount may amend the fees for Platform Services in order to compensate for a rise in staff and general costs. Paramount shall inform Customer in writing about such change at least six (6) weeks before the price change comes into effect.
9.4 If Customer orders Platform Services which are designated by Paramount as a demo version or corresponding type of version that enables Customer to try and test the Plat-form Services, Paramount may offer such Services free of charge for a certain term as specified by Paramount. Any use of such Platform Services by Customer beyond such term is subject to fees as set forth herein and a separate Contract.
9.5 Customer shall pay to Paramount the Professional Service Fees. Professional Service Fees may be quoted on a fixed price basis, or on a time and materials basis, as indi-cated in the applicable Contract. If quoted on a time and materials basis: (a) such fees are based on “person-days” (eight (8) hours of work per day) or “person-weeks” (forty (40) hours of work per week over a five (5) business day period); and (b) any total monetary amount stated in the applicable Contract shall constitute an estimate only, solely for Customer’s budgeting and Paramount’ scheduling purposes. Unless other-wise provided in the applicable Contract, Paramount shall invoice Customer for Pro-fessional Services on a monthly basis. Customer shall reimburse Paramount for rea-sonable travel, administrative, equipment, and out-of-pocket expenses incurred in per-forming Professional Services. Such expenses are not included in any fixed price or time and materials estimate unless expressly itemized. All Professional Services Fees and expenses charged under the Contract will be due and payable within thirty (30) days of the date of invoice.
9.6 Except as otherwise provided in the Contract, all amounts due shall be paid in U.S. dollar, at the address set forth herein or such other location as Paramount designates in writing. Any amount not paid when due will bear interest at the rate of nine (9) per-centage points above the base rate p.a. In the event of default Paramount may, in its sole discretion, suspend all unpaid Platform Services, Professional Services and/or Contracted Support until the full amount is paid, or terminate the Contract as permitted herein below or by statutory laws.
9.7 All amounts invoiced under a Contract exclude any sales, use, excise, import, export, value added, or other similar taxes or governmental charges, including any related pen-alties and interests however designated, with respect to the provision of Services under the Contract, other than taxes based on the net income of Paramount (collectively, “Taxes”). Customer hereby agrees to pay all Taxes, even if billed after termination or expiration thereof, and will reimburse, indemnify and hold harmless Paramount from all liabilities for Taxes. If Customer is exempt from federal or state income tax, or certain state and local sales and use taxes, Customer must provide Paramount with appropri-ate documentation of such exemptions upon Customer’s submission of the order to Paramount.
10. TERM, TERMINATION AND POST-TERMINATION
10.1 Any Contract for Platform Services may be terminated without cause by either party at the end of a Month upon two weeks written notice (including notices via email).
10.2 If Customer is in material breach of a Contract and fails to cure the breach within thirty (30) days of receipt of written notice from Paramount, Paramount shall have the right, at its sole discretion, to terminate the Contract in its entirety. Nothing in these Terms and Conditions shall affect either party’s right to terminate a Contract for an important reason in accordance with Sections 314 and/or 626 of the German Civil Code (BGB, Kündigung aus wichtigem Grund).
10.3 Customer shall not be entitled to reimbursement of fees or compensation for unused Services.
10.4 Upon expiration or termination of an Access Term or termination of a Contract for Plat-form Services for any reason, Customer shall immediately cease access to the Server and use of the Platform Services, and Paramount shall make available to Customer for download the Customer Data in Storage via XML file for 72 hours as of the expiration or termination date. Paramount shall automatically delete all Customer Data completely and permanently two (2) weeks after expiration or termination of the Contract or earlier upon Customer’s request except to the extent that statutory laws require Paramount to retain certain Customer Data. Deviating provisions regarding the release of Customer Data (e.g. regarding time, format, documentation or migration) are subject to a separate agreement and fees.
11.1 “Confidential Information” means any confidential and/or proprietary information, re-lating to past, present or future, research, technology, know-how, ideas, inventions (whether patentable or not), concepts, designs, products, computer programs, pro-cesses, business plans, financial, operational or technical information (whether in oral, written, electronic or other form) provided by one party hereunder (the “Disclosing Party”) to the other party (the “Receiving Party”) that is marked or otherwise identified orally or in writing as being confidential or proprietary, or that the Receiving Party knows or under the relevant circumstances surrounding the disclosure, ought reasonably to know is of a confidential or proprietary nature. Confidential Information excludes infor-mation which: (a) has entered the public domain except where such entry is the result of the Receiving Party’s breach of the Contract or the breach of other obligations of confidentiality; (b) prior to disclosure hereunder was already in the Receiving Party’s possession without confidentiality restrictions; (c) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party who has the right to disclose such information; or (d) was independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party.
11.2 The parties shall use appropriate reasonable measures to protect the confidentiality of all Confidential Information of the other party and shall not use such Confidential Infor-mation other than for the purpose of the Contract. The parties may disclose Confidential Information of the other party to their affiliates, officers, directors and employees who have a need-to-know the Confidential Information to carry out their duties hereunder and shall not copy, disclose, convey or transfer any of the Confidential Information, or any part thereof, to any third parties without the other party’s prior written consent. The parties are permitted to disclose Confidential Information of the other party that is re-quired to be disclosed by a governmental authority or applicable law, in connection with a legal or administrative proceeding provided that the receiving party shall: (a) promptly notify the Disclosing Party of any such disclosure requirement; (b) reasonably cooper-ate with the Disclosing Party if the Disclosing Party seeks a protective order or other remedy in respect of any such disclosure; and (c) furnish only that portion of the Con-fidential Information which the Receiving Party is legally required to disclose and only in connection with such proceeding.
11.3 Each party shall exclusively retain all rights, title and interest in its Confidential Infor-mation. Nothing in a Contract is intended to grant either party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
11.4 Notwithstanding the above, the parties agree that Paramount will collect and analyze Customer Data together with data that other users upload to the Platform Services for the purpose of enhancing and improving the Software and Services. Paramount shall anomyze Customer Data prior to such use.
12. LIMITATION OF LIABILITY
12.1 Paramount is fully liable in accordance with statutory laws in the event of intent (Vor-satz) as well as in case of an injury to life, body and health. In all other cases the following Sub-Sections shall apply.
12.2 In case of gross negligence (grobe Fahrlässigkeit) the liability of Paramount towards Customer is restricted to typical, foreseeable damages.
12.3 In case of slight negligence (leichte Fahrlässigkeit) Paramount shall only be liable to-wards Customer in case of an infringement of a duty the fulfillment of which is neces-sary, if taking account of both parties’ interests, to adequately perform the Contract, and on the fulfillment of which Customer may rely. In such case Paramount’ liability is restricted to typical, foreseeable damages. The liability of Paramount is excluded in all other cases of slight negligence; however, such exclusion of liability shall not affect the liability of Paramount under Sub-Section 1 above.
12.4 With respect to Platform Services any liability without fault for defects existing at the effective date of the respective Contract (liability under Sec. 536a Subsec. 1 Alt. 1 Ger-man Civil Code (BGB)) is excluded, unless such defect relates to an expressly guaran-teed feature or specification, or in case of a malicious concealing of a defect.
12.5 In the event that the Services or Software are designated by Paramount as a beta release or beta version (hereinafter collectively referred to as “Beta Version”), such Beta Version is a pre-release version and is not at the level of performance of a final, generally available product offering. The Beta Version may have limited availability and not operate and/or be provided correctly, and may be substantially modified prior to first commercial release, or withdrawn. Therefore, a Beta Version is provided “AS IS” without warranty of any kind.
13.1 Neither party may assign a Contract, in whole or in part, without the prior written con-sent of the other party; provided that either party may assign or transfer its rights and obligations under a Contract to an entity that acquires all or substantially all of its busi-ness or assets, whether by sale, merger, operation of law or otherwise. Any assignment in violation hereof shall be void ab initio and of no effect. Subject to the foregoing, the Contract is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.
13.2 The terms of these Terms and Conditions that by their nature or express terms are intended to survive termination or expiration will survive termination or expiration of the Contract, including, but not limited to all payment obligations and Sections 1, 8, 10.4 and 11, 12 and 13.
13.3 Paramount may issue a press release announcing the execution of a Contract and Customer’s status as a customer of Paramount, and upon obtaining Customer’s prior written approval, include quotes from Customer in such press release. Paramount may use Customer’s name and logo on Paramount’ website, financial reports, press re-leases and prospectuses and in customer lists solely to indicate that Customer is a customer of Paramount. Any joint marketing activity and any other press release shall be subject to review and approval by both parties.
13.4 The Contract is subject to German law with the exception of its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
13.5 The courts of Munich, Germany, shall have sole jurisdiction over all legal disputes aris-ing out of or in connection with the Contract. Paramount, however, shall remain entitled to commence court proceedings at any other statutory place of jurisdiction.
13.6 If any provision of these Terms and Conditions is or will be found invalid or unenforce-able, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms and Conditions will remain in full force. Notwithstanding the above, the parties shall replace such invalid or unenforceable provision by a valid pro-vision, which reflects, to the maximum extent possible, the original intent of the parties.
13.7 The Contract including these Terms and Conditions, along with any valid amendments hereto, completely and exclusively state the entire agreement of the parties regarding the subject matter herein, and supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter.
13.8 Notwithstanding the foregoing, Paramount may amend these Terms and Conditions upon one (1) month written notice (including notices via email) to Customer. The amendments shall be deemed having been approved by Customer, and apply as of their effective date proposed by Paramount, unless Customer has notified Paramount in writing of its disapproval prior to their proposed date of entry into force. Paramount shall expressly draw Customer’s attention to such implied consent in its notice. In the event of Customer’s written notice of disapproval, these Terms and Conditions shall continue to apply as between Paramount and Customer without any changes.