Stand: August 2023
The following general terms and conditions in their current version govern the temporary, paid use of the software called "ForkX" manufactured by ForkOn for the optimization and better management of forklift fleets (the "ForkX Software"), as well as related additional services (the "Terms of Use").
The Terms of Use supplement the customer contract to be concluded between ForkOn and the customer (the "Customer"), which governs the details of the contractual relationship between ForkOn and the customer, such as the number of forklifts registered with the customer for the ForkX software,prices, data rights clause, and contract term (the "Customer Contract"), (Terms of Use and Customer Contract hereinafter together the "Contract").
Any general terms and conditions of the customer do not apply, even if ForkOn does not expressly object to them in individual cases.
1.1 ForkOn GmbH, Maximilian-Kolbe-Straße 19, 45721 Haltern am See, (hereinafter the "Operator"or "ForkOn") provides the ForkX software to the customer for use over the Internet for the period agreed in the customer contract (Software as a Service). The ForkX software remains on the servers of ForkOn and/or a provider engaged by ForkOn.
Via the website www.ForkOn.de, ForkOn also offers the customer various services associated with the use of the ForkX software, such as certain content, features and functions, as well as the provision of storage space for the use of the ForkX software (hereinafter together the "Service").Functionalities and performance features of the ForkX software and the service are described in the ForkX software description (Appendix 1 to the customer contract).
The customer can reach the operator by telephone at +49 2364 94 799 74 or by e-mail atinfo@forkon.de, as well as in writing at the aforementioned address or at Office Köln - the address is given under "Contact" on the ForkOn website at www.ForkOn.de. The customer is responsible for the Internet connection between the customer and the systems operated by ForkOn.
1.2 ForkOn is constantly working on improvements and further developments of the ForkX software and the service. ForkOn is entitled to adapt the ForkX software and the service through ongoing updates and upgrades to a reasonable extent. ForkOn will inform the customer of significant changes at least four weeks before the change date. The subject of the service is therefore the ForkX software and the service in their respective current form.
1.3 The initial setup of the ForkX software and the service for use by the customer is carried out by ForkOn.
2.1 ForkOn makes great efforts to provide the ForkX software and the service as un interrupted as possible. Unless otherwise agreed, the defined availability time is 24 hours a day, 7 days aweek. ForkOn guarantees an average annual availability of at least 98.5% based on a calendar year. However, availability may not be impaired or interrupted for more than two consecutive calendar days.
2.2 The availability rate is calculated as follows:
Availability rate =(defined availability time - unplanned downtime) ./. defined availability time≥ 98.5%
This means:
Defined availability means an availability of 24 hours a day, 7 days a week, without taking into account the following downtime:● Downtime caused by incoming IT attacks. This does not apply if ForkOn is obliged to use virus protection programs and these did not comply with the state of the art at the time of the IT attack.
● Downtime caused by improper use of software or hardware by the customer.
● Downtime caused by maintenance work that has been agreed with the customer or has become unforeseeably necessary.
2.3 By agreement, ForkOn only carries out maintenance work on Saturdays and Sundays and fromMonday to Friday only between 8 p.m. and 7 a.m.
3.1 ForkOn will set up the number of forklifts agreed in the customer contract and thus authorized for the use of the ForkX software and the service for the customer as part of the setup. The registration for the authorized use of the ForkX software and the service is done by creating individual access data. The customer can create any number of users in the system for each registered forklift. Each user must be created in the system as a user with individual access data (login).
3.2 The customer is obliged to manage the authorized users. The respective access data may only be used by the person for whom they were set up. The transfer of the access data to third parties or the use of the same access data by several people is not permitted. The choice of a secure password for access is the sole responsibility of the user, for example, the password"password" is not a good idea. The customer is responsible for any misuse of the access by his employees or third parties, unless the customer and his employees are not at fault for the misuse.
3.3 The customer must ensure that authorized users are deleted when the corresponding persons are no longer working for the customer. Access to the service at the connection point is the responsibility of the customer (e.g. hardware and software equipment of the clients and the provision of a corresponding Internet access for the customer). The transfer point for the service and all application data is the connection point of the ForkOn website to the public Internet.
3.4 If ForkOn software components have to be installed at the customer's premises to use the ForkX software and the service, the customer is responsible for providing the required system environment ready for operation and for installing and configuring these software components.
3.5 The customer is responsible for complying with any existing legal retention obligations regarding the data processed with the ForkX software and the service.
4.1 This contract is concluded for the term agreed in the customer contract. During this minimum term, ordinary termination is excluded on both sides.
4.2 Both parties have the right to terminate the contract for a good cause without observing a notice period. Important reasons are in particular:
a) the customer's violation of the provisions of this contract, which is not remedied even after a deadline has been set;
b) the customer violates the agreed rights of use, in particular if he unauthorizedly transfers the use to a third party;
c) changes to the ForkX software lead to significant disadvantages for the customer;and
d) the customer is in default with his payment obligation for more than six weeks.
4.3 The provision of § 545 BGB (tacit renewal of the tenancy) does not apply.
5.1 Billing and payment methods for the use of the services result from the customer contract
5.2 All agreed prices are plus the statutory sales tax and other taxes and duties applicable at the time of the service, which are levied on ForkOn's services. The invoice is to be paid at the time agreed in the customer contract. ForkOn sends invoices exclusively by e-mail to the e-mail address provided by the customer for this purpose..
6.1 For the term of the contract, the customer receives the non-exclusive, non-transferable right to access the ForkX software and the service by means of a browser and an Internet connection and to use them for their own business purposes within Germany. The right of use is limited to the number of units booked by the customer (number of managed forklifts), as specified in the customer contract.
6.2 Furthermore, the customer does not receive any ownership rights or permanent rights beyond the term of the contract and the defined purpose of the ForkX software and the service. All rights to the ForkX software, the service, the underlying software applications or ForkOn software components installed at the customer's premises in the original, in copy or in modified form remain with ForkOn in this respect.
6.3 If ForkOn provides the customer with a hardware device for further functionalities of the ForkX software, the right of use also extends to the hardware device and the functionalities that are available via this device.
7.1 As an appendix to the customer contract, ForkOn provides the customer with an up-to-dates ervice description of the ForkX software, which describes the intended use and the operating conditions of the ForkX software.
7.2 ForkOn is obliged to make the ForkX software and the service available free of defects that do not insignificantly cancel or reduce their suitability for contractual use.
7.3 In the event of significant deviations from the service description, ForkOn is entitled to subsequent performance and, as far as this is not associated with unreasonable effort, also obliged. If ForkOn does not succeed in eliminating the deviations from the service description or bypassing them within a reasonable period of time by means of subsequent performance in such a way that the customer is enabled to use the ForkX software and service in accordance with the contract, the customer can demand a reduction of the remuneration or terminate without notice.
7.4 The customer is obliged to provide ForkOn with verifiable documents about the nature and occurrence of deviations from the service description and to assist in narrowing down errors.
7.5 The warranty does not extend to defects that are caused by a deviation from the operating conditions intended for the ForkX software and the service and specified in the service description.
7.6 In the event of damage to the device, ForkOn will only provide a replacement if there is a technical failure of the device within the statutory warranty period that is not due to damage to the device by users.
8.1 ForkOn is liable for damages resulting from injury to life, body or health, in the case of liability under the Product Liability Act or from a guarantee, as well as for intent and gross negligence in accordance with the statutory provisions.
8.2 A no-fault liability of ForkOn for damages for defects that were already present when the order was placed is excluded.
8.3 For slight negligence, ForkOn is only liable for culpable violation of essential contractual obligations (obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely). The liability in the event of a violation of such an essential contractual obligation is limited to the foreseeable and contract-typical damage, the occurrence of which ForkOn had to expect at the time the contract was concluded on the basis of the circumstances known at that time.
8.4 ForkOn is only liable for the loss of data in accordance with the above provisions if such a loss could not have been avoided by appropriate data backup measures on the part of the customer.
8.5 Furthermore, ForkOn's liability does not extend to impairments of the contractual use of the ForkX software and the services provided by ForkOn that were caused by improper or faulty use by the customer or his employees.
8.6 The above limitations of liability also apply mutatis mutandis in favor of ForkOn's vicarious agents.
8.7 Insofar as a possibility of forwarding to databases, websites, services, etc. of third parties is given via the website www.ForkOn.de, e.g. by setting up links or hyperlinks, ForkOn is not liable for the accessibility, existence or security of these databases or services, nor for their content. ForkOn is also not liable for their legality, factual accuracy, completeness or topicality.
9.1 Cases of force majeure (such circumstances and events are considered to be those that cannot be prevented with the care of proper business management) suspend the contractual obligations of the contracting parties for the duration of the disruptions and to the extent of their effect. Further claims do not exist.
9.2 Force majeure also includes consequences of a labor dispute at ForkOn or a third party for which ForkOn is not responsible, provided that this has an impact on ForkOn's performance.
10.1 Both contracting parties are obliged to treat information about confidential know-how orinternal company matters of the other contracting party obtained before or after the conclusion of the contract as strictly confidential. This applies in particular to all non-publicly accessible information about the ForkX software and the service as well as the data processed in this context.
10.2 Both contracting parties will oblige their employees (including employees, interns, etc. who are only temporarily employed) and, if necessary, subcontractors engaged in the course of the execution of this contract in writing to maintain confidentiality to the extent specified and, upon request, provide the other contracting party with corresponding declarations of commitment.The confidentiality obligation continues indefinitely even after the termination of the contract
10.3 The confidentiality obligation according to Clauses 10.1 and 10.2 does not apply insofar as the exceptions of § 5 GeschGehG apply, as well as to such persons who are authorized by law or due to permission of the respective other contracting party to take note and are obliged to maintain secrecy, which may be required by one of the contracting parties on the basis of legal provisions and/or official orders. Confidential information that is generally known or becomes generally known without the disclosing contracting party being responsible for this is not covered by the confidentiality obligation.
10.4 Furthermore, the customer is not permitted to obtain confidential information (including trade secrets of ForkOn) by means of reverse engineering. Reverse engineering means all actions, including observing, testing, examining and disassembling and, if necessary, reassembling, with the aim of obtaining confidential information.
11.1 The use of the ForkX software and the provision of the service are based exclusively on these Terms of Use. Deviating or supplementary terms and conditions of the customer only apply if they are expressly accepted by ForkOn in writing. The unconditional provision of services by ForkOn does not constitute consent to your terms and conditions.
11.2 ForkOn can inform the customer of changes or additions to these Terms of Use by e-mail. The customer can object to the change within six weeks (an e-mail is sufficient). If you do not object, the change is considered approved by the customer and becomes effective three months after ForkOn's notification. Otherwise, changes and additions to the contract generally require the written form to be effective, whereby this written form requirement can itself only be deviated from in writing. E-mails are sufficient for the written form.
11.3 The law of the Federal Republic of Germany applies exclusively. The provisions of the "UNSales Law" (CISG) and references to foreign legal systems do not apply.
11.4 Exclusive place of jurisdiction and place of performance for all obligations arising from this contract is Haltern am See, Germany. ForkOn is also entitled to sue at the customer's general place of jurisdiction.
11.5 Should individual provisions of these Terms of Use be or become invalid and/or contradict the statutory provisions, the validity of the Terms of Use as a whole is not affected. The invalid provision will be replaced by the contracting parties by mutual agreement with a provision that comes as close as possible to the economic purpose of the invalid provisions in a legally effective manner. The above regulation applies accordingly to loopholes.
FORKON ALL RIGHTS RESERVED
