Version of October 2020
A. Scope and Contractual Parties
The following General Terms and Conditions (GTC) apply to orders and use for all Vimcar GmbH products. This applies especially to orders placed via the online shop https://www.vimcar.co.uk or any other online shops operated by the Vimcar GmbH company (e.g. at https://www.amazon.de) and to the mileage tracker app for iOS or Android end devices, as well as the web version of the app (http://app.vimcar.com) (hereinafter "VIMCAR mileage tracker") and the supplementary interfaces for fleet managers, if Vimcar is used for more than one vehicle of a fleet (http://fleet.vimcar.com) (hereinafter "VIMCAR Fleet"). For the avoidance of doubt: VIMCAR Fleet is not a component of the VIMCAR mileage tracker. In particular, additional costs might be incurred for the use of VIMCAR Fleet.
These GTC also apply to any other products offered by Vimcar GmbH (e.g. Vimcar Boxenstopp, eBooks offered for download, Vimcar fuel card).
The VIMCAR mileage tracker and VIMCAR Fleet are hereinafter also jointly referred to as "VIMCAR".
In the following, "user" refers to any user of VIMCAR.
2. Contractual partner
The contractual partner of the user is Vimcar GmbH, Skalitzer Straße 104, 10997 Berlin, Germany, registered at the Charlottenburg District Court [Amtsgericht] with registration number HRB 154163B (hereinafter "Vimcar GmbH") when making a purchase through the online shop of Vimcar GmbH or through any other online shops operated by Vimcar GmbH. You can contact us via telephone at +44 20 39 66 45 66.
Vimcar GmbH exclusively distributes its products itself or through licenced distributors. If a purchase is made with VIMCAR or a retailer licenced by Vimcar GmbH (e.g. Mediamarkt, Lexware, car dealerships, etc.), the contractual relationship between Vimcar GmbH and the user is limited to the use of the software and the provision of the hardware. In this respect, these GTC only apply to the extent that the use of the software as well as the use and the provision of the hardware is involved. In all other respects, the terms and conditions of the respective distributor apply.
4. Assignment of rights
The user can only transfer the rights and obligations resulting from the agreement concluded with Vimcar GmbH with the written consent of Vimcar GmbH. Vimcar GmbH does not assume any liability for transactions concluded between third parties (e.g. through eBay).
5. Further products and services
If the user orders further VIMCAR products and/or services, these GTC shall also apply to the subsequent order, unless otherwise agreed with the user.
6. Amendments of the GTC
Amendments to these GTC can be agreed on offer by Vimcar GmbH and acceptance of the user, in accordance with the following provisions, provided that the amendment does not have a significant negative effect on the user as concerns the balance between performance and counter-performance. Vimcar GmbH makes its offer through a written notification of the contentual changes (notification of change). If the user does not respond to the offer of Vimcar GmbH or does not reject it within six (6) weeks after receiving the notification of amendment, this constitutes acceptance of the order, with the amendments coming into effect. These consequences will be pointed out separately to the user with the notification of change. If the user objects to the offer in due time, the existing GTC will continue to apply. Timely submission of the declaration of objection in text form suffices to comply with the set periods.
B. General Terms and Conditions
1. Vimcar Products
1.1. Subject matter of the mileage tracker
1.1.1 The VIMCAR mileage tracker is an electronic mileage tracker to document trips made with cars registered for commercial use.
1.1.2. The VIMCAR mileage tracker of Vimcar GmbH consists of a VIMCAR OBD dongle which is transferred to the user by way of rental, as well as an extension cable to connect the OBD dongle if required, or a VIMCAR GPS tracking unit “Vimcar Box” (both hereinafter "Hardware") and the VIMCAR mileage tracker app, available for iOS, Android, and in a web version for drivers (http://app.vimcar.com) and fleet managers (http://fleet.vimcar.com), if VIMCAR Fleet was additionally booked. The Hardware and Software are jointly also referred to as the "VIMCAR mileage tracker". The Software is provided by Vimcar to the user by way of rental ("Licence") (see 4.1.1). In individual cases, use without Hardware may be possible. In this case, the provisions in these GTC relating to the Hardware shall not apply.
1.1.3. The VIMCAR OBD dongle provided by way of rental is self-installed by plugging it into the diagnostics connection (usually located in the footwell) of the vehicle. This technology allows direct access to data from the vehicle, facilitating the maintenance of complete mileage tracking (provided that the dongle is plugged into the diagnostics connection). The VIMCAR OBD dongle is fitted with a GPS module for position tracking. The VIMCAR OBD dongle additionally has a SIM card to transmit data; it may not be removed from the VIMCAR OBD dongle and is to be used exclusively in connection to VIMCAR. The Box transferred by way of rental is attached to the vehicle battery. This technology allows for the use of VIMCAR without using OBD data. The VIMCAR Box is fitted with a GPS module for position tracking. The VIMCAR Box additionally has a SIM card to transmit data. The installation of the Hardware is not required by Vimcar.
1.1.4. The VIMCAR mileage tracker is based on the legal requirements placed by tax authorities on digital mileage trackers. Vimcar GmbH declares that, to the best of its knowledge, the current version of the software meets the technical prerequisites for proper digital mileage tracking management and that any future updates will also meet said prerequisites. The KPMG auditing company has audited that Vimcar, in the proper registering of trips, complies with all significant aspects the requirements for correctness placed on mileage trackers pursuant to the BMF circular dated 18 November 2009, BStBl. I 2009, page 1326, ref. no. IV C 6 - S 2177/07/10004, modified by the BMF circular dated 15 November 2012, BStBl. I 2012, page 1099. The complete test result can be accessed here: https://vimcar.de/kpmg.
In case a subsequent modification to the mileage tracking is required the user can autonomously make such changes up to seven days after the respective journey. Additionally, the user can demand such a subsequent modification of the logbook only up to 14 days after the respective journey (cut-off period). In case of technical discrepancies the user is obliged to contribute to any remediation.
1.1.5. Vimcar GmbH points out that there is currently no option to have electronic mileage logs certified by the tax authority or to receive official approval of electronic mileage trackers from the same. The assessment whether an electronic mileage tracker is to be recognised as lawful always only takes place in individual cases.
1.1.6. The Hardware or other end devices entrusted to the customer remain the property of Vimcar GmbH and must be shipped back to Vimcar GmbH after expiry of the contract at the expense of the user. The shipping risk is imposed to the user who is also responsible for adequate packaging. The Hardware must be treated with care at all times. In the event of loss, the user is liable for the value of the hardware. The value of the OBD dongle amounts to 90 GBP excl. VAT. The value of the Vimcar Box amounts to 100 GBP excl. VAT.. In the case of hardware loss, Vimcar reserves the right to offer a free replacement of max. 3 hardware units or 10 % of the total number of hardware units rented by the customer per year.
1.1.7. For the duration of the contract or test phase, the user receives a non-exclusive, non-transferrable, and non-sublicensable right to use the Software, unlimited in terms of time. The contractually compliant use is limited to running the software for the purpose of fleet management.
1.1.8. The user shall receive any software updates necessary for proper operation, including the firmware, on their Hardware. The user undertakes to only operate the Hardware using the firmware provided by Vimcar GmbH. Only Vimcar GmbH may carry out maintenance and repairs on the Hardware transferred to the user. Vimcar GmbH is entitled to make configurations and carry out updates to the firmware via remote maintenance.
1.2. VIMCAR Fleet
VIMCAR Fleet is a web-based software (https://fleet.vimcar.com) for digital fleet management. VIMCAR Fleet builds on the VIMCAR mileage tracker. Vehicles and drivers can be created and updated by users themselves. Depending on the custom privacy settings, e.g. mileage trackers for pool vehicles solely used for business purposes can be accessed and controlled. VIMCAR Fleet is expanded continuously and, in addition to the core trip logging feature, contains further features revolving around localisation, cost optimisation, and documentation. VIMCAR Fleet does not require any Hardware other than the Hardware used for the VIMCAR mileage tracker. For the use of the Hardware the provisions under 1.1. of the GTC are applicable. VIMCAR Fleet is available in three versions with different features, that is VIMCAR Fleet PRO, VIMCAR Fleet ADMIN, and VIMCAR Fleet GEO.
2. Contract conclusion and creation of a user account
2.1. If the user has procured the Hardware through a retailer, the following Clauses 2.2-2.3 shall not apply to them.
2.1.1. For using the Vimcar OBD dongle the Vimcar mileage tracker app and a user account are required which the user creates on the website communicated to them , unless such an account was exceptionally created for the user by Vimcar GmbH. The Vimcar mileage tracker app is available via “App-Stores” (iOS, Android) for the user to download to their personal device or alternatively, it can be accessed via the web version (http://app.vimcar.com bzw. http://fleet.vimcar.com) if the Vimcar Fleet product has additionally been acquired.
2.1.2. To use VIMCAR Fleet, a user account with access to the fleet manager at http://fleet.vimcar.com can be provided by Vimcar GmbH on request. Additional costs may be incurred through the use of VIMCAR Fleet.
2.2. Unless agreed otherwise, the contract between the user and Vimcar GmbH is concluded with the receipt of an order confirmation or invoice, however no later than with performance of the service (activation of the user account) by Vimcar GmbH. The user is only issued an invoice in digital form (e.g. as a .pdf), which the user can then print using the “print” function. The GTC can be accessed at any time at https://vimcar.co.uk/terms-and-conditions.
2.3. Vimcar GmbH will either accept or reject the contract offer of the user within five (5) days. Otherwise, the user has the right to withdraw. This shall not apply if the user stipulated a shorter acceptance period for their contract offer.
2.4. We will use the contact details provided by the user to inform them about our own similar product and service offers of a similar nature, and to assess the satisfaction of our customers with our services. If you no longer wish to receive advertising information or to be contacted for other purposes, you can object to the use of your contact details for commercial purposes at any time with effect for the future.
3. Delivery and product availability
3.1. The Hardware is shipped via mail. Vimcar GmbH bears the risks of shipping.
3.2. The user directly downloads the Software onto their mobile end device from the relevant "App Store" (iOS, Android, etc.). Alternatively, the user can make use of the web version through an Internet browser.
3.3. Vimcar GmbH shall immediately inform the user if the Hardware ordered by the user is temporarily unavailable. The user is entitled to an extraordinary right of withdrawal in case of delays in delivery exceeding fourteen (14) days.
4. Terms of payment and test phase
4.1. VIMCAR mileage tracker. A licence must be purchased to use the VIMCAR mileage tracker. The licence can be purchased for different periods of time. As a promotion, various persons and/or companies are offered a free test phase.
4.1.1. Terms of payment. The licence fee must be paid in advance each time. The overall amount communicated to the user in the invoice applies. The invoice amounts must be paid onto the specified bank account at the latest ten (10) working days after receipt of the invoice. The user is also in delay of payment without having received any payment reminders if the payment due is not received by Vimcar GmbH within fourteen (14) days after receipt of the invoice. If SEPA direct debit was selected as the payment method, Vimcar GmbH shall inform the user two (2) days before withdrawal of the date and amount of the withdrawal (shortening the notice period for advance information on the SEPA direct debit). The user undertakes to ensure that the specified bank account has sufficient coverage. Bank fees as a result of return debits culpably caused by the user are charged to the user.
4.2. Vimcar Fleet. Users not in the possession of an ongoing licence for the VIMCAR mileage tracker shall receive the Hardware (if required) for a limited period of time to use VIMCAR Fleet, as well as a non-exclusive, non-transferrable, and non-sublicensable right to use the Software, unlimited in terms of time; costs for the use of the SIM card are included. The fee for VIMCAR Fleet must be paid in advance each time.The costs for VIMCAR Fleet are dependent on the term, number of vehicles, and the selected scope of features. Offers can be obtained through, https://vimcar.co.uk/contact-us.
4.3 If the user is in default of payment, Vimcar GmbH is entitled to block the user account(s). In this case, the user is still obligated to continue paying the agreed costs in full.
4.4 The user can only offset payment claims of Vimcar GmbH with claims either undisputed, ready for judgement in a legal proceeding, or legally binding. The user is only entitled to a right of retainment as a result of claims from the same contractual relationship.
5. Term and termination
5.1. Vimcar Software is ordered online and provided on a subscription basis in different plans as described by the price lists available at https://vimcar.co.uk/products/prices and as applicable at the time the subscription is ordered. For existing customers, the individually communicated term applies, which is usually also twelve (12) months.
5.2. The contract term is extended by another year, unless the contract is terminated by the user or Vimcar four weeks before the end of the contractual term at the latest. The same applies to a debit authorization. The amount individually communicated to the user for the contract extension will be withdrawn by Vimcar GmbH using the payment method stored within fourteen (14) days after notification, if technically feasible (credit card and SEPA direct debit). Clause 4.1.1 Sentence 6 shall apply mutatis mutandis (shortening the notice period for advance information on the SEPA direct debit). After termination of the contractual relationship, the user shall without undue delay return the Hardware to Vimcar GmbH (Skalitzer Straße 104, 10997 Berlin, Germany) at their own expense. The user shall be charged a fixed sum of € 100 GBP excl. plus VAT for Hardware which has not been received by Vimcar GmbH within ten (10) days after the end of the contract. The user bears the risks of return shipping and adequate packaging.
5.3. If, after expiry of the Test phase individually communicated to them, the user decides not to purchase a licence, their user account will be blocked after a period of fourteen (14) days from the end of the Test phase. However, VIMCAR can already no longer be used immediately after expiry of the Test phase and the Hardware must without undue delay be returned to Vimcar GmbH (Skalitzer Straße 104, 10997 Berlin, Germany), with the costs, risk of shipping and adequate packaging borne by the user.
5.4. Extraordinary termination for a compelling reason shall remain unaffected hereby. A compelling reason in particular comprises the use of VIMCAR by the customer in a manner contravening applicable data protection provisions (e.g. General Data Protection Regulation (GDPR), Federal Data Protection Act (BDSG)).
5.5. Termination must be done in writing.
6. Warranty and guarantee
6.1. The warranty rights of the German Civil Code (BGB) applies to VIMCAR.
6.2. From October 01 2020 onwards, Vimcar GmbH warrants a lifetime guarantee for the Hardware or other end devices entrusted to the customer. Vimcar warrants to customers only that the Hardware shall be free of defects in materials and workmanship under normal use and service. Vimcar GmbH shall bear the costs for any Hardware replacements or repairs. Vimcar GmbH reserves the right to charge the user with costs associated with the hardware replacement in the case of a repetitive misuse of the warranty.
This guarantee does not apply to the following: (a) superficial damage, including scratches, dents and damaged plastic on the connections, unless the defect is due to a defect in material or workmanship; (b) damage resulting from accidents, misuse or improper use, fire, contact with liquids, earthquakes or other external causes(c) damage resulting from the improper use of Vimcar hardware in accordance with the user manual, specifications or published guidelines; (d) damage resulting from service work (including upgrades and expansions) that has not been carried out by a Vimcar representative; (e) Vimcar hardware whose serial number has been removed or tampered with.
7. Vehicle registration, installation, and liability
7.1. The Hardware offered by Vimcar GmbH has been certified with the E-Certificate valid throughout Europe and required by the Federal Motor Transport Authority [Kraftfahrtbundesamt], ensuring that the use of VIMCAR does not violate the registration of the vehicle.
7.2. The installation of the Hardware is done by the user at their own risk. In case of any uncertainties with regard to the technical handling the user is advised to approach a professional garage. Users must themselves, before placing their order, check with the manufacturer of their vehicle whether the installation of the Hardware affects the relevant manufacturer’s warranty and/or guarantee.
7.3. Claims of the user for compensation are excluded. This does not include claims for compensation of the user resulting from damage to life, body, health, or from the breach of essential contractual obligations (cardinal obligations), as well as liability for other damages based on intentional or grossly negligent breaches of obligations by Vimcar GmbH, its legal representatives, or vicarious agents. Cardinal obligations are those obligations which must be fulfilled in order to realise the objective of the contract.
7.4. With breaches of essential contractual obligations (cardinal obligations), Vimcar GmbH shall only be liable for those typical contractual damages foreseeable at the time of the breach, if these are the result of simple negligence; this does not cover claims for compensation of the user resulting from damage to life, body, or health.
7.5. The restrictions specified in the Clauses above shall also apply to the benefit of the legal representatives and vicarious agents of Vimcar GmbH if claims are asserted directly against them.
7.6. The provisions of the Product Liability Act (ProdHaftG) as well as the Federal Data Protection Act (BDSG) shall remain unaffected.
7.7. Before placing their order, the user shall carry out a compatibility check of the Vimcar hardware with his or her personal vehicle in accordance with the data through the Vimcar website (https://vimcar.co.uk/support). Vimcar GmbH expressly points out that, in spite of the greatest possible diligence being exercised, not all compatibility questions might be cleared up by Vimcar GmbH before placing the order. This is attributable, among other reasons, to the broad variety of different vehicle models, individual configurations, and manufacturers. Vimcar GmbH can only guarantee the compatibility of the Hardware if compatibility was expressly communicated in writing. Vimcar GmbH does not accept liability for errors and/or damages resulting from a lack of suitability for use.
7.8. The user will endeavour to, without undue delay after receiving the Hardware, carry out a compatibility check with their vehicle as well as a functionality test of the VIMCAR mileage tracker and to immediately inform Vimcar GmbH of any defects which become apparent to them.
7.9. Vimcar GmbH reserves the right to interrupt access to the Software and restrict use of the Hardware, if necessitated for compelling reasons and for as long as said reasons exist, for example with necessary maintenance work on servers or programs or the required infrastructure, in the event of unauthorised attacks on data or computers, to remedy unforeseen security vulnerabilities, or with other grave disruptions. These short-time restrictions do not justify any liability or warranty claims on the part of the user.
8. Voluntary right of return (30 days)
8.1 Vimcar GmbH grants a voluntary right of return of 30 days from receipt of the rented Hardware from VIMCAR.
8.2 Dispatch of the withdrawal in good time is sufficient to comply with the time limit. A prerequisite to exercise the voluntary right to return is, however, that you have merely plugged in the Hardware into your motor vehicle for test purposes and return the Hardware in full, intact, and without damages, in its original condition, and in the original packaging. Until the expiry of the period for the statutory right of withdrawal, the statutory conditions listed therein shall apply exclusively. The voluntary right of return does not limit the statutory warranty rights, which you remain entitled to without restrictions. The voluntary right of return does not apply to the purchase of gift vouchers.
C. General Final Provisions
1. Choice of law
The relationship between the contractual parties shall be exclusively governed by the laws of the Federal Republic of Germany, to the exclusion of private international law and the United Nations Convention on Contracts for the International Sale of Goods. This also applies to shipments outside of Germany even considering the substantive law which is applicable.
2. Priority of the German General Terms and Conditions
In case of doubt, the German version of the General Terms and Conditions of Vimcar shall prevail. This applies e.g. in the event of the inaccuracy of a provision.
3. Agreement on jurisdiction
To the extent permitted by law, the exclusive jurisdiction for all disputes is the headquarters of Vimcar.
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