Bayerische Motoren Werke Aktiengesellschaft (“BMW AG”), Petuelring 130, 80788 Munich, district court of Munich, registry number HRB 42243, value-added tax identification number: DE129273398 (hereafter “the operator”) operates the Aftersales Online System AOS (hereafter “the portal”) under the domain “aos.bmwgroup.com” and under various other domains, subdomains and aliases. All websites on which the portal is operated are hereafter referred to in their entirety as “portal websites”.
Conflicting or deviating terms and conditions from any user of the portal shall not apply and shall not be accepted by the operator.
§ 1 Contents of the portal; users
The operator shall make technical information available to the users specified below in paragraph 3.1. via the portal, in particular information and applications for the proper maintenance and repair of motor vehicles and motorcycles manufactured by the operator or its affiliates and/or marketed under the operator's brands (hereafter “Contents”).
§ 2 Establishment of the contractual relationship
- The retrieval of the information shall, depending on the type and scope of the information, either be free of charge or subject to a charge as specified in the price list provided via the portal.
- All payments shall be made in euros in accordance with the tariffs and conditions of payment specified in the price list provided via the portal.
§ 3 Licensing
- Users are entitled to a licence if they belong to the category of “independent operators” as defined by the Block Exemption Regulation (EC) 461/2010 and/or the Regulation (EC) 715/2007 or successor regulations on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to repair and maintenance information for motor vehicles and/or motorcycles and are domiciled within the European Economic Area (EEA) or Switzerland or if they belong to a category of persons entitled according to comparable regulations in other jurisdictions. A licence may be granted by the operator on an exceptional basis in individual cases. The following example is provided to clarify the terms used:
- User: Smith Ltd, as the party to the contractual relationship with the operator;
- Legal representative: Mr John Smith, director of Smith Ltd.;
- Access 1: Mr Smith, as the legal representative of Smith Ltd, has an access account with expanded administrator rights, created as the first access account automatically upon registration;
- Access 2: Mr Miller, a mechanic at Smith Ltd, is given his own access account, which is assigned to Smith Ltd.;
- After receiving the licence confirmation and enabling by the operator, the user can log on to the portal.
- Only one licence is possible per user. Dissemination of the licence details to third parties is strictly prohibited. The user may apply for multiple access accounts within one licence.
- The user is obliged to keep constantly up-to-date the details the user provides in the course of obtaining and managing the licence, including immediately discontinuing or removing access accounts of individuals who are no longer entitled to act on behalf of the user’s organisation and changing the passwords of those accounts on a regular basis to prevent misuse.
- By obtaining a licence for the portal, the user acknowledges and agrees that the contents and any accompanying materials in the portal are the property of BMW AG and will remain BMW AG’s property at all times, and BMW AG owns all rights, title, and interests in the contents and any accompanying materials, including but not limited to its intellectual property rights, defined as all patents, rights to inventions, utility models, copyright and related rights, trademarks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other proprietary rights, in each case whether registered or unregistered (hereinafter “Intellectual Property Rights”).
- The licence grants the user only a non-exclusive, personal and non-transferrable end-user licence for the contents for the duration of the licence. The license does not grant the user any ownership or other rights in the contents.
- The user will not remove, modify, or obscure any copyright notices, trademarks, or other proprietary rights notices on or contained in or on any portion of the contents or other information accessible through the portal.
§ 4 Fees paid by the user
- Use of the portal when not “logged on” is free of charge, as is the licence and the upkeep of an access account.
- When logged on, there are contents which are free of charge as well as contents which can only be obtained subject to a charge. The price list provided via the portal gives an overview of the contents which are subject to a charge and their prices.
- To use contents which are subject to a charge, the user must purchase virtual credit and load it onto the virtual credit account. Contents subject to a charge can then be used via all the authorised access accounts assigned to the user against payment of corresponding amounts from the virtual credit account.
- There is a minimum amount for loading of the virtual credit account, specified in the price list provided via the portal.
- Depending on the particular contents subject to a charge, they may be used by opening a time ticket or by means of a “transaction”:
- Time tickets are a time-based usage authorisation for particular contents for a particular period of calendar time starting from the moment when the time ticket was opened, for the duration of the period it was opened for, until the expiry of that period. An opened time ticket shall run even if not used and shall expire accordingly. The calendar time remaining on an opened time ticket can be viewed at any time.
- Transactions are one-off, time-independent usage authorisations for particular contents in accordance with the description of the contents, e.g. for a vehicle-specific support request to the operator or service providers and vicarious agents engaged by the operator.
- The credit remaining in the virtual credit account can be queried at any time.
- The remuneration shall not be dependent on results. Even if the use of contents subject to a charge does not lead to the successful result desired by the user, this shall not give rise to a claim for a refund.
§ 5 Use of the contents provided
- Unless prior written agreement from the operator is obtained, the user shall use the contents provided only for proper performance of maintenance and repair work of motor vehicles and motorcycles manufactured by the operator or its affiliates and/or marketed under the operator's brands and within the context of the user's organisation and shall not disseminate them to third parties (including outlets and workshops within the user's own network of organisations or workshops) or use, save, publish or reproduce them in any other way. All activities of the user in the user's capacity as an “independent operator” as defined by § 3 and the regulations listed therein shall be treated as equivalent to maintenance and repair work. For the sake of clarity, the manipulation of vehicle software is not considered repair and maintenance work if such manipulation results in technical issues or cancelation of type-approval.
- The Governing Agreement may provide for a further limitation of the use of the contents, subject to the business requirements of the user.
- Automated reading e.g. by bots, crawlers or other automated reading means is strictly prohibited.
- The user is strictly prohibited from reverse engineering, de-compiling or disassembling any information accessible through the portal, including, but not limited to, the contents.
- The user has no right to and is strictly prohibited from selling, licencing, or transferring any information accessible through the portal, including, but not limited to, the contents.
- The operator is authorised to block access temporarily for good cause, e.g. if:
- it must be assumed that the user's details are incorrect;
- it must be assumed that unauthorised use by the user's access accounts has taken place.
- In the event of a block, the operator shall inform the user by email. For every instance of unauthorised use of contents, the user undertakes – with exclusion of the plea of connection with a previous unauthorised use – to pay the operator a contractual penalty amounting to one annual fee as specified in the price list provided via the portal.
- The user shall be liable for any damages incurred by the operator, or where applicable, by one of the operator's affiliated companies within the meaning of Section 15 of the German Stock Corporation Act, arising from any unauthorised use of the contents, subject to deduction of any contractual penalty actually paid. This shall also apply to damages caused by third parties.
§ 6 Safety information
- The contents provided are intended especially for the proper performance of maintenance and repair work. To be able to carry out the aforementioned work, it is essential that the worker in question has completed his/her vocational training as a motor mechanic/fitter and has undergone regular further training. Where special tools are referred to in the information provided, the use of these tools is essential for professional-quality repairs.
- Repair work on Hydrogen vehicles must only be performed after consultation with the vehicle-specific customer contact of the local BMW Group company. If improperly used, there is the danger of resultant damage and the associated safety risks. To be able to carry out the aforementioned work, the prerequisite is that the worker in question has completed his/her vocational training as a motor mechanic/fitter and has undergone regular further training in the BMW Training Academy.
§ 7 Liability of the Operator
- Use of the information provided in the portal is at the user's own risk. Liability of the operator based on improper performance or inadequate qualifications or product knowledge is excluded. The information provided shall be updated by the operator on a regular basis.
- The operator does not guarantee that the portal shall be accessible at all times or for an unlimited period of time. Scheduled maintenance windows exist, which shall usually be on business days. The operator shall not be liable for any system failures or any kind of damages resulting from such failures (including but not limited to damages from loss of profits, interruption of business, loss of business or other pecuniary losses) unless intent or gross negligence exists on the part of the operator.
- In the event of violation by the operator of essential and central contractual obligations, the liability of the operator shall be limited to the typical damages foreseeable at the time of the establishment of the contractual relationship.
- The limitations of liability set forth in this § 7 shall not apply to damages arising from injury to life, limb or health.
§ 8 Duration of the contractual relationship; termination
- Unless the Governing Agreements provides otherwise, the contractual relationship is established for an indefinite period.
- It shall lapse automatically if one of the following conditions is met:
- The last logon by an access account assigned to the user is more than one year ago and there is no valid time ticket open (see also § 4 Fees paid by the user).
- The user no longer belongs to the category of persons entitled to licensing and use as defined in § 3.
- The operator makes another solution of equal (or higher) value available to the entitled category of persons at comparable terms and conditions.
- The contractual relationship between the user and the operator for the use of the portal may be terminated without notice by either party at any time for good cause. Good cause justifying termination without notice on the part of the operator includes, but is not limited to, the following situations:
- the user makes false statements during the licensing process, for example when completing the licence application;
- the user does not use the provided contents in a permitted manner (see also § 5);
- the manner in which the user uses the portal impairs the operation of the portal (e.g. automated reading);
- the user does not respond when contacted by the operator after blocking the user's access account
- The contractual relationship may be terminated by the user at any time without stating a cause. To this effect, the user may delete the user's own access account.
- Unused virtual credit and started time tickets shall be refunded after termination.
- Upon termination of the licence, the user is obliged to delete and physically destroy any and all copies of available contents as well as any other information that was accessed through the portal. BMW AG may request a sworn statement from the user. Upon termination of the licence, the user must also refrain from further using any information that was accessed through the portal.
§ 9 Applicable law, place of jurisdiction, severability
§ 10 Data protection
- The user shall process the personal data made available to him on the portal as controller within the meaning of applicable data protection law and is solely responsible for the compliance with applicable data protection law.
- The user shall process any information on the portal which contains personal data only for the purposes set out in § 5 (1) and shall oblige its employees and any other persons who have access to the licence accordingly.
§ 11 Trademarks
Unless otherwise specified, all trademarks on the portal websites are proprietary trademarks of the BMW AG and may not be used by the user other than with the written permission of the BMW AG or as permitted by law. This applies particularly to brands, type designations, software names, logos and emblems.