General Terms and Conditions for the Use of ETKA

General Terms and Conditions of Business (hereinafter referred to as “T&C”) of LexCom Informationssysteme GmbH, Rüdesheimer Strasse 23, 80686 Munich (hereinafter “LexCom”; for more contact and company information please click on “Legal Notice” within your ETKA software), governing the use of the software product ETKA and related services (hereinafter “ETKA software”). If a company affiliated with LexCom concludes a contract for the ETKA software with the user, these General Terms and Conditions apply accordingly.

Version: July 2020 (T&C from April 2018)

§ 1 Scope of Application

The terms and conditions set out below shall apply to all contracts between users of the ETKA software and LexCom relating to the use of the ETKA softwares. Users of the ETKA software are exclusively entrepreneurs.
The user accepts these General Terms and Conditions by confirming a checkbox in the order form and/or by clicking on a checkbox upon initial registration in the ETKA software. Users can also call up these T&C at any time after conclusion of the contract at the “T&C” link, which can be found in the ETKA software as well as at www.etkainfo.com.
The ETKA software is normally made available via provision of a DVD (hereinafter referred to as “ETKA DVD”); in this case, these T&C supplement the DVD order forms and are considered subordinate to those. In exceptional cases, the ETKA software is made available in particular markets in an online version (available at www.etka.com) or via provision of an ETKA information system (including an ETKA server) on basis of a full-service contract (hereinafter referred to as “ETKA full-service”); in this case, these T&C supplement the ETKA server device certificates as well as the full-service contract for ETKA information systems and are considered subordinate to those.
Registered users also have the option to download the ETKA software as an app (hereinafter “ETKAmobile”); in this case these General Terms and Conditions shall supplement and apply subordinately to the separate general terms and conditions for ETKAmobile.
Any deviating, contrary or supplementary T&C shall not become an integral part of the contract unless their validity has been expressly agreed to in writing.

§ 2 Scope of Services

ETKA allows users to search for ~~and to order~~ original spare parts of Audi, SEAT, Skoda and Volkswagen (including Volkswagen Commercial Vehicles and Caminhoes e Omnibus), in addition to Bentley and Bugatti. Users can also place non-binding order inquiries via ETKA to other ETKA users (“ETKA-to-ETKA order”) and thus initiate orders or order spare parts through the official brand-name spare parts distribution network. ETKA offers a monthly average of 98,5% availability, except for a scheduled maintenance window on Sundays between 6 am and 4 pm (German time) as well as outages that are outside the control of LexCom.
The detailed scope of services is outlined in the other ETKA contractual documents and the product documents valid for the respective version of the ETKA software.
ETKA, as an information system officially intended for the Volkswagen dealer network, supports the users (dealers) in offering their customers a professional service in accordance with Volkswagen’s specifications. In order to ensure the quality of this service, information on the type and scope of orders placed and the use of ETKA software may be evaluated by LexCom in accordance with data protection regulations and forwarded to Volkswagen AG and its importers/national subsidiaries (where relevant).
LexCom shall not be responsible in the course of rendering its services for (a) the completeness of the spare parts entered into its database, nor for (b) the completeness and accuracy of the data and information provided by the manufacturers, importers or distributors (including their respective general terms and conditions), since the compilation of these data is beyond the control of LexCom. Whenever any deficiency regarding the data should become apparent, LexCom will immediately inform the manufacturer concerned and make corrected data available. All spare part prices displayed are recommended retail prices specified by the manufacturers. Only the individual seller can provide binding pricing information.
ETKA offers manufacturers the ability to supply information to participants in the Volkswagen aftermarket network, in particular authorised dealers. Upon submission of a non-binding order enquiry by the user and acceptance of this enquiry by the seller, these parties enter into a business relationship. Any subsequent conclusion of a contract, as well as handover and billing of the spare parts between the users (interested parties and dealers) is outside the responsibility of LexCom.
LexCom itself offers neither spare parts nor information relating to the ETKA software beyond the contents of the database.
The ETKA software itself does not contain prices for spare parts. Prices are displayed in ETKA in coordination with the respective Volkswagen importer or the respective National Sales Company.
Catalog updates are provided online on a weekly basis.

§ 3 Data Protection and Security

Any and all personal data collected from the user are handled in compliance with the data security legislation applicable for LexCom. LexCom’s Privacy Statement – available within the ETKA software under the section „Privacy“ – applies.

§ 4 User’s Rights and Obligations

LexCom grants the user the non-exclusive right to use the ETKA software (including additional devices and components that may be provided) for a time period limited by the duration of the contract, provided all fees due are paid in full. The user may not lease, loan, sell, sub-license, cede, transfer or allow third-party use of the ETKA software or the associated usage rights; nor may the user copy or allow others to copy the ETKA software, neither in full nor in part.
When using the ETKA software, the user has the option to take their own photos of spare parts or vehicles and share them with other ETKA users via the “ETKA Community”. Content that the user uploads in this way to the ETKA software or otherwise makes available to LexCom is hereinafter referred to as “user content”. By uploading/providing their user content, the user grants LexCom a simple and transferable right to use their user content that is unrestricted with respect to time, geography and content.
The operation of ETKA via a terminal server is prohibited. Operation of ETKA by a third party (in particular the operator of a data centre) is only permitted with the express written consent of LexCom.
The secure data transfer via the internet as well as the usage of all ETKA functions requires the user’s registration on the online portal www.etkainfo.de. Incomplete or false information release LexCom from the obligation of data transfer and the provision of unlimited usage of the ETKA software.
Administrators of user accounts are obliged to administer all registration data and users created for their accounts properly and truthfully and to immediately enter any changes to these data at www.etkainfo.com under the heading “Administration”.
The user confirms that the user content and other entries~~input~~ and messages submitted by the user do not violate any legal provisions or rights of third parties and that they will not have any adverse effects on the data or the data processing system of LexCom. This applies in particular to personal rights and intellectual property rights (e.g. copyright and trademark rights, etc.). In particular, the user is prohibited to offer or request information or data that would violate any criminal laws or other legal provisions or the commerce of which is prohibited or subject to permission.
In the event of infringement, the user is obliged to indemnify LexCom from any claims that third parties may assert against LexCom as a result of an infringement; this does not apply if the user has not acted culpably. In the event of an infringement and upon request, the user is obliged to immediately, truthfully and fully provide LexCom with all information required to assess the claims and defend against them. Any liability of the user beyond the scope of these provisions remains unaffected.
Use of ETKA - in particular the vehicle identification number query function - is primarily for the purpose of identifying necessary spare parts for a vehicle and obtaining them from ETKA. The user shall use ETKA only to an extent that does not substantially exceed that user’s typical scope of use for this purpose. If the use exceeds this purpose and/or the usual scope of use, LexCom reserves the right to restrict or block access to ETKA.
It is not permitted for users to reproduce, to save in other media, to distribute or to change the information, data, drawings, specifications and documents (“ETKA material”) integrated in the ETKA software, unless these actions are consistent with the intended use. Access to the ETKA material via automated processes (e.g. robots, spider tools etc.) is prohibited. Individual pages may be printed or saved only in accordance with intended use of the products.
Users are prohibited from sharing their individual login credentials (user name and password) with third parties or passing them on to third parties.
To ensure correct operation of the ETKA software, tThe user agrees to maintain a high-speed internet connection and consistent availability of the ETKA software, to promptly install all updates received, whether online or on a DVD, to carefully read all documents provided together with the devices/the software, and~~as well as~~ to follow all notes and instructions. In case of questions or problems, LexCom’s customer service has to be contacted at all times. All costs or damages that arise from measures carried out without approval by LexCom, will be charged to the user.

§ 5 Prices and Conditions

The license fees charged are evident from the additional ETKA contractual documents.
The prices shown on the device certificate or order form, are list prices valid on the day of publication. Should these prices change until receipt of order, LexCom will grant the user a new offer. There is no obligation for shipping based on outdated prices.
All prices listed are gross prices and include the applicable VAT, depending on the residence or the registered office of the recipient of service (EU/third countries).
Invoices will be provided to the user by LexCom in text form (PDF format).
All fees shall be settled by invoice payment, credit card or direct debiting, depending on the user’s location. It is the responsibility of the user to ensure that the account or the credit card maintains an adequate balance and that all credit card or bank details are up to date and correct. If settlement is made by invoice payment, all fees incurred for the bank transfer shall be at the user’s charge.

§ 6 Notices and Declarations

The users recognize the unrestricted validity of declarations of intent made in this manner subject to the following clauses:
1. In the e-mail message, common information must neither be suppressed nor circumvented by anonymization, i.e. the message must include the name and the e-mail address of the sender, the time the message was sent (date and time) as well as a repetition of the sender’s name at the end of the message. Unless proven otherwise, an e-mail message received according to the criteria of this clause shall be deemed to originate from the other party.
2. All messages shall be phrased in the German or English language and the associated “Contact” module must be used.
Please direct any messages or declarations regarding these T&C to service@lexcom.de.

§ 7 Disruption of Service

If any substantial disruption of the ETKA software should occur that is within the scope of responsibility of LexCom, a downtime of more than 24 hours shall extend the period of use by the same period.

§ 8 Limitation of Liability

LexCom shall be liable to the user without limitation in case of intent or gross negligence for any damage caused by LexCom, its legal representatives or persons employed in performing its obligations.
As to ordinary negligence, LexCom shall be liable without limitation in case of injury to life, limb or health. In all other respects, LexCom shall only be liable insofar as the company has violated an essential contractual duty (material contractual obligation). Material contractual obligations are obligations that must be fulfilled for proper performance of the contract, whose breaching would jeopardise achievement of the purpose of the contract and on whose observance the contracting party may duly rely. Liability in such cases shall be limited to the foreseeable, typically occurring damage.
Liability pursuant to the provisions of the German product liability act (Produkthaftungsgesetz) shall remain unaffected.

§ 9 General Provisions / Legal Venue / Applicable Law

German law shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The place of performance for all mutual services and payments under the contract shall be Munich, Germany.
At the election of LexCom, the legal venue shall be either Munich, Germany, or the user’s registered office.
The present T&C are published in the German language and in various other languages. In case of doubt, the German version shall be authoritative for the interpretation of the T&C.
LexCom reserves the right to amend these T&C at any time and without having to state any reasons for such amendments. The user will be made aware of any amendment by means of an electronic notification ~~in the course of usage of ETKA~~in the course of usage of ETKA. Should the user not object to the amendment within a period of four weeks after receipt of the notification, the amended clauses shall be deemed accepted.