LEGAL | EASYTRIP
Terms and Conditions
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TERMS & CONDITIONS OF THE SUPPLY AND USE OF SERVICES AND PRODUCTS SUPPLIED BY
easytrip Services Ireland Limited (hereinafter called “The Service Provider” or “the Service Provider”)
AGREEMENT FOR PRE-PAID PRIVATE AND BUSINESS MEMBERS
These Terms and Conditions set out the agreement between you (the Member”) and The Service Provider, in relation to the supply and use of the Services & Products (“the Agreement”).
1 DEFINITION’s
1.1 In this Agreement the following words and expressions shall have the following meanings unless the context otherwise requires:
“Account” means the Member’s account with the Service Provider to be used only by the Service Provider with respect to its Services;
“Account Application Form” means the application form (paper form or online) available at the Service Provider’s Points of Sales, on the Service Provider’s website, including mobile, app, SMS and any other electronic means, and by post (upon request) to be completed by the Member prior to opening an Account;
“Account Service Fee” means an amount (plus the VAT) charged to the Member when credit is added to your account. Regardless of the form of the credit the fee is a fixed amount. The Account Service Fee covers costs associated with credit, security technology, website, administration, customer services and payment provider costs.”
“Administrative Monthly Fee” means an amount (plus the VAT) charged to the Member once per month per Account for the maintenance of the Account and the insurance of the Tag(s) in accordance with clause 7.3 of this Agreement where applicable;
“Agreement” means the agreement between the Service Provider and the Member for the maintenance of an Account and for the use of the Tag(s) or any other service offered by the Service Provider by the Member on the terms and conditions set out herein, together with the Account Application Form. The Agreement is only available in the English language;
“Automatic Replenishment” means an automatic credit of the Account by direct debit of the Member’s bank account or by a debit of His/her credit card or debit card (Laser, Visa Debit/ MasterCard Debit) pursuant to the Mandatory Mandate given from the Member to the Service Provider;
“Black-List” means the list encompassing Tags for which there has been an occurrence of a BlackListing Event to be sent to the Information Exchange Agent and to the Service Provider electronic equipment in the Car-Parks by the Service Provider at least once an hour;
“Black-Listing Event” means an event leading to the inclusion of the Tag on the Black-List that is provided to toll plazas pursuant clause 10;
“Car-Park” means any of the car park zones indicated on the webpage of the Service Provider. The list of compatible car park zones published on the webpage of the Service Provider may be updated by the Service Provider from time to time;
“Car-Park Fees” means the fees payable to the Service Provider in respect of the use of a Car-Park which fees may be calculated by reference to the particular class (see Class of Vehicle definition below) to which a Member’s vehicle belongs. Car-Park fees may change from one Car-Park to another or from one time of the day to another;
“Chosen Top-Up Amount” means the top-up amount indicated by the Member in the Account Application Form which is equal or superior to the Minimum Top-Up Amount and that is automatically drawn from the Member’s bank account pursuant to the Mandatory Mandate each time the Minimum Low Balance Level is reached;
“Class of Vehicle” means the class, to which the vehicle used by the Member on the Toll Road or in Car-Parks relates, encompassing classes 2 to 8 being Class 1 Motorcycle, Class 2 Car, Class 3 Bus (25 Seat), Class 4 Bus (25 seat), Class 5 L.G.V, Class 6 H.G.V. 2 Axle, Class 7 H.G.V 3Axle, Class 8 H.G.V 4 Axle.
“Compatibility” means that a Member using Car-Parks and holding a valid entry mechanism will be able to access Car-Parks. The particular Car-Park fees will be charged to the Member by the Service Provider;
“Consumer” has the meaning set out in Section 3 of the Sale of Goods and Supply of Services Act, 1980;
“Convenience Charge” means an additional charge that is added to the price of a chargeable transaction where applicable;
“Data Protection/GDPR” easytrip abides by the Data Protection Acts 1988 to 2018. Any data you provide to us about yourself or third parties will remain confidential and will be retained securely and in accordance with the above Acts. We may however need to share your personal data with appointed agents and thirdparty service providers who have been assigned by easytrip such as CarTow, Best Drive, Maxol and Car Parking Operators. We will not keep any information we hold about you for any longer than is necessary. We record all calls both inbound and outbound for verification purposes and these calls may be monitored for training, quality purposes and in order to detect and prevent fraud. Unless you have advised us otherwise, from time to time we may contact you (by email, SMS, telephone, live chat or other appropriate means) for marketing purposes, to invite renewal of your membership and to advise of membership rewards available to you. We are obliged to make you aware that each time you receive contact from us in relation to marketing you may exercise your right to decline further contact from us. If you wish to avail of this “opt out” option, please write to our:
Data Protection Officer
privacy@easytrip.ie
Easytrip Ireland
EA House, Damastown Industrial Park, Mulhuddart, Dublin 15
Please note that a copy of our full Data Protection and Privacy Policy can be viewed on our website www.easytrip.ie
“ETC” means Electronic Toll Collection;
“Inter-operability” means that a Member using a Toll Road and holding a Tag will be able to affect the discharge of a Toll by means of ETC on the Toll Road of all operators in Ireland who are members of the Information Exchange Agent using a single Tag, regardless the issuer of that Tag;
GDPR – Personal Identification Information
We may collect personal identification information from Users in a variety of ways, including, but not limited to, when Users visit our site, register on the site, place an order, subscribe to the newsletter, respond to a survey, fill out a form, and in connection with other activities, services, features or resources we make available on our Site. Users may be asked for, as appropriate, name, email address, mailing address, phone number, credit card information. We will collect personal identification information from Users only if they voluntarily submit such information to us. Users can always refuse to supply personally identification information, except that it may prevent them from engaging in certain Site related activities. easytrip services may collect personal data about you on this website, including information which you volunteer (for example by using our online feedback form). As part of routine administration, easytrip services collects statistical information such as page view, and browser statistics. Where possible these are collected anonymously and are not sold on or disclosed to others third parties.
Non-personal Identification Information
We may collect non-personal identification information about Users whenever they interact with our Site. Non-personal identification information may include the browser name, the type of computer
and technical information about Users means of connection to our Site, such as the operating system and the Internet service providers utilised and other similar information. All clients may request access to the personal details collected by easytrip services in relation to themselves and the use of services owned by them. easytrip services makes every effort to ensure that such details are always correct and up-to-date and will amend any inaccuracies or changes to details on request.
Please email info@easytrip.ie with any requests.
easytrip services does not retain clients’ personal information longer than is necessary for the purposes of compliance with the law and routine administration. easytrip services keeps client information on controlled facilities, which are secured against unauthorised access. Proof of identity will be required before information is released to any person, including the client. easytrip services typically communicates with its clients through a combination of Phone, Written, Fax, E-mail, SMS and live chat correspondence.
“Mandatory Mandate” means a direct debit or a debit from the Member’s credit card or debit card (Laser) and other continuous mandatory authority mandate authorising the automatic payment to the Service Provider of a sum of money;
“Member” means a Consumer who has opened a Member Account with the Service Provider and has paid their initial subscription for one or more of the services, or subscriptions that the Service Provider provides, being a natural person or a Company;
“Member Guide” means the instructions for the installation and use of the Tag enclosed with the packaging for the Tag and as may be amended by the Service Provider from time to time and notified to the Member “Minimum Low Balance Level” means the minimum balance (default amount of six euros) (6.00 €) – VAT exclusive per Tag that the Member must maintain on his account at all times;
“Minimum Top-Up Amount” means the minimum top up (default amount of twenty euros) (20 €) – VAT exclusive per Account that is automatically drawn From the Member’s bank account pursuant to the Mandatory Mandate each time the Minimum Low Balance Level is reached;
“Misuse” means the Member’s failure to act in accordance with the provisions of clause 3.2, including such other acts or omissions that the Service Provider may specify and notify to Members from time to time;
“Payment” means the payment by the Member to the Service Provider using the stated Payment method;
“Payment Method” means a payment by the Member to the Service Provider made by credit card, debit cards and direct debit; cash is only accepted at the Service Provider’s Points of Sale; cheques are only accepted at the opening of the Account;
“Permitted User” means any person permitted by the Member to use the Member’s Tag(s);
“Positive Balance” means the advance of money on the Account held by the Service Provider for its Services to be provided to the Member;
“Post pay Method” means the type of account maintained by you with Easytrip where an amount equal to the amount due in respect of Tolls, monthly fees and other services incurred during a Charge Period are paid by the debiting from time to time of the then outstanding amount from your Account.
“Prepayment” means the method pursuant to which the Member pays the Toll with the positive balance of his Account that should not be equal or inferior to the Minimum Low Balance Level;
“Product” means a service provided by the Service Provider to the Member including combined tolling and parking and any other service offered by the Service Provider to the Member;
“Rejected Payment” means a Payment which is rejected for any reason and not received by the Service Provider;
“Replacement Tags” means a tag that is dispatched where the original tag is either faulty or the battery is end of life.
“Roaming Fee” means the Inter-operability management fee payable to the Service Provider by the Member, which may be increased at any time;
“Services” means tolling only services; and parking only services; and all other services offered by the Service Provider, under the Agreement including but not limited to the provision of Tags, Compatibility and Inter-Operability;
“Service Provider’s Points of Sales” means the points of sale of the Service Provider;
“Service Provider’s Call Centre” means the call centre of the Service Provider;
“Spare Tag Fee” means an amount (plus the VAT) charged to the Member once per month per Account for Tag(s) rental where no Services are assigned to the Tag(s) or the Member fails to return a rented Tag(s) in accordance with clause 12.2.
“Statement” means the monthly Account statement showing amounts of the transactions and charges applied to the Member account including the amount of Tolls, Car-Park fees, breakdown related cover or other fees connected to any other service offered by the Service Provider, Administrative Monthly Fee and all sums charged by the Service Provider (including the Roaming Fees when applicable) and such other information as the Service Provider may deem appropriate from time to time;
“Supplier” means the supplier of any Service or Products which the Service Provider arranges to supply to the Member with the Members agreement;
“Tag” means any compatible device to be affixed to the Member’s vehicle pursuant to the Member Guide to facilitate the identification of the Member under the terms of the Agreement in respect of the use of one or more of the services offered by the Service Provider to the member;
“Tag Holder” means a small device that sticks to the windscreen to hold the tag in place.
“Tag ID” means the identification number attributed to each Tag delivered to the Member,
“Tag Purchase Cost” means the price of the Tag pursuant to clause 7 in case the Member chooses to purchase a Tag(s), either on a monthly account basis or on a pay as you go basis and not to rent Tag(s);
“Third Party Service” means a professional organisation engaged by the Service Provider to provide information, goods or services for, and in the name of, the Service Provider to the Members
“Toll Bye-laws” means the bye-laws made pursuant to the Roads Act, 1993 as amended in respect of any Toll Scheme;
“Toll” means the tolls leviable by any operator of a Toll Road under the terms of the relevant Toll Bye-laws and/or toll or charge payable in respect of the use of a Toll Road which tolls will be calculated by reference to the particular class to which a Member’s vehicle belongs.
“Toll Road” means any Toll Scheme or other service which may be used or accessed with a Tag associated to roads operated by operators which are members of the Information Exchange Agent;
“Toll Scheme” means any toll scheme operated in accordance with the Roads Act, 1993.
“Transaction Fees” means all Breakdown associated fees, Car-Park fees, Toll’s or other charges which can be discharged using The Service Provider tag.
1.2
References to statutes or statutory provisions or regulations include references to any orders or regulations made there under and references to any statute, statutory provision, orders or regulations made there under include that statute, statutory provision, order or regulation as amended, modified, re-enacted or replaced from time to time. References to persons shall mean natural person and exclude bodies corporate and unincorporated, associations and partnerships. References to the masculine gender shall, unless the context otherwise requires, include the feminine gender and vice-versa. References to cent, euro or €, shall mean the lawful currency for the time being of Ireland. Headings to clauses are for information only and shall not form part of the operative provisions of this Agreement and shall be ignored in construing it.
2 SUBSCRIPTIONS
2.1 A Consumer shall apply to the Service Provider, using an Account Application Form, online or off-line, for the opening of an Account. Member Account Application Form may be obtained from the Service Provider’s website, by postal application to the Service Provider’s address or at the Service Provider’s Points of Sale. The Consumer shall specify on the Account Application Form details relating to the proposed Payment Method, to the Mandatory Mandate, the proposed Products, the purchase or the hire of the Tag and to the vehicle on which he/she will install the Tag.
2.2 The Service Provider reserves the right to refuse any application for an Account and shall notify it to the Consumer accordingly.
2.3 Where an account is opened as a result of a telephone conversation and the Service Provider furnished the Member with a Tag, the Consumer will be deemed to have agreed to the Terms and Conditions of The Service Provider the Service Provider, the first time the Consumer uses the Tag, or service and will thereafter be referred to as Member.
2.4 When you create a Member Account and accept these terms you become a Member of the Service Provider’s Mobility Service Club.
2.5 As a Member you please the Service Provider the right to:
2.5 (i) negotiate with operators or owners, of toll plazas, including prepay discounts for tolling, car parks and any other relevant operators or businesses on behalf of its Members for existing and future services;
2.5 (ii) settle disputed transactions and penalties on behalf of its Members;
2.5 (iii) reclaim monies owed to Members, solely for the Members benefit, for the settlement of disputed transactions;
2.5 (iv) negotiate group discounts for Members from third parties;
2.5 (v) collectively negotiate with third parties for the provision of goods or services for all members or for groups of members
3 SUPPLIES AND USE OF THE TAG
3.1 Conditions for the supply of the Tag by the Service Provider Once the Account Application Form has been accepted by the Service Provider and the Minimum Low Balance Level, the Chosen Top-Up Amount and in case of the purchase of the Tag the Tag Purchase Cost then payable are received by the Service Provider, the Service Provider will issue the Tag(s) directly to the Member at the Service Provider’s Points of Sale or post the Tag(s) to the address provided on the Member’s Account Application Form (or any other address as later notified by the Member to the Service Provider). The Service Provider will not be liable to the Member for any compensation by reason that it is unable to supply the Member with a Tag.
3.2 USE OF THE TAG
3.2.1 Subject to clause
3.1, the Service Provider shall provide the Member with the Tag and the
Member shall: a) Install and use the Tag in the vehicle in accordance with the Service Provider’s instructions detailed in the Member Guide and in accordance with the Agreement; b) The User shall only use the Tag for the Vehicle(s) listed and assigned to each Tag and in respect of which the Tag was issued. c) Not transfer, sell, dispose of, damage or tamper with the Tag or use the Tag fraudulently or illegally. d) Exercise all possible care to ensure that the Tag is not lost, stolen or misused; and e) Give the Service Provider all information in his/her possession regarding any loss, theft or Misuse of the Tag and take all steps the Service Provider deems necessary to assist the recovery of the Tag.
3.2.2 The Member may allow a Permitted User to use the Tag subject to the terms of this Agreement which shall be brought to the attention of any Permitted User by the Member. The Member remains responsible for any use made of the Tag by a Permitted User. The Member shall not do anything or permit anything to be done which may constitute a Misuse of the Tag. The use of the Tag by the Member or any Permitted User is solely at the risk of the Member. Each Tag is issued in respect of an individual vehicle. No Tag may be moved to any other vehicle without first notifying The Service Provider and receiving their agreement to the movement of the Tag.
3.2.3 The Tag may serve only as a mean of identification of the Member on Toll Roads and Car-Parks to be conducted exclusively by the Service Provider in accordance with the conditions applying generally to the use of Toll Roads and Car-Parks. The Member acknowledges that for the Tag to operate correctly, it must be installed in accordance with the Service Provider’s instructions included in the Member Guide and that the failure to properly install the Tag will prevent it from operating properly. The Service Provider shall not be responsible for the Member’s failure to install the Tag properly.
3.3 REPLACEMENT OF DEFECTIVE TAGS
3.3.1 The Member shall be responsible for notifying the Service Provider of a malfunctioning or defective Tag. The Member shall bring the defective Tag to one of the Service Provider’s Points of Sale or send it to the Service Provider via post with receipt of acknowledgment. The agents of the Service Provider will acknowledge the receipt of the Tag by exchanging it at the Service Provider’s Points of Sale when so agreed by prior arrangement between the parties or sending a new one by post to the address of the Member as indicated in the Account Application Form (or any other address as later notified to the Service Provider). A malfunctioning or defective Tag that, in the opinion of the Service Provider, is defective for reasons other than Misuse by the Member shall be replaced at no cost to the Member.
3.3.2 To the extent required by the Service Provider, a Tag may be tested at the Service Provider’s office to determine if it is functioning properly. The precedent Tag ID will be removed from the Black List if it was previously on it and the Tag ID associated to the Account will be changed.
3.3.3 Defective Tags, which were originally sold to a Member, are covered under warranty for a period of one year from the date that the Tag is assigned to the Member account.
4 NOTIFICATIONS OF DAMAGED/LOST/STOLEN TAGS/ REQUEST FOR TAG HOLDERS
4.1 In the event that a Tag is damaged, lost or stolen the Member must immediately notify the Service Provider by telephone by calling the Service Provider Call Centre on + 353 1890 67 67 68, or by email to info@easytrip.ie (lines open during office hours) (or such other numbers as notified from time to time) or on the Service Provider’s website, to be confirmed in writing p ursuant clause 18. Until the Service Provider receives such confirmed notification, the Member will remain liable for any use of the Tag. After the Service Provider receives such confirmed notification, the Member’s liability for any subsequent Misuse of the Tag will cease.
4.2 If the Tag previously notified as lost or stolen pursuant to clause 4.1 is retrieved, the Tag must be returned to the Service Provider pursuant to Clause 12 of this Agreement where applicable.
4.3 Following notification to the Service Provider in accordance with Clause
4.1 above, the Service
Provider shall black-list the Tag by including the Tag ID in the Blacklist.
4.4 In the event that either a leased Tag or a purchased Tag is damaged, lost or stolen, or thewarranty period for a purchased Tag has expired, the Member shall be entitled to a replacement Tag and shall be charged for both the replacement of the Tag and the associated administration fee
where applicable.
4.5 In the event where a customer changes vehicle and needs a new tag holder to hold their original tag, a charge of 50c will be deducted from the customer’s account.
5 MISUSES OF THE TAG
In the event that the Service Provider is of the opinion that a Tag is or has been subject to Misuse, the Service Provider will be entitled to blacklist the Tag by including the Tag ID in the Black-List so that no further use may be made of the Tag. The Service Provider shall not be liable to the Member for any deactivation of the Tag due to any actual or reasonably suspected Misuse of the Tag.
6 PREPAYMENT ACCOUNTS
6.1 The Member is able to open a Prepayment Account by filling in an Account Application Form which can be obtained at the Service Provider’s Points of Sale, by post or online via the Service Provider’s website. The Account is effectively opened once the Account Application Form has been accepted by the Service Provider pursuant article 6.2.
6.2 The acceptance of an Account Application Form by the Service Provider is subject to receipt by the Service Provider of the Minimum Low Balance Level, the Chosen Top-Up Amount and in case of the purchase of the Tag the Tag Purchase Cost then payable. Once the Minimum Low Balance Level, the Chosen Top-Up Amount and in case of the purchase of the Tag the Tag purchase Cost then payable are received by the Service Provider and the Account Application Form has been accepted by the Service Provider, the Service Provider will issue the Tag directly to the Member at the Service Provider’s Points of Sale or post the Tag to the address provided on the Member’s Account Application Form (or any other address as later notified to the Service Provider). The Service Provider will endeavour to complete the application processing within five (5) working days from acceptance of the Account Application Form.
6.3 The Member acknowledges that by agreeing to these Terms and Conditions:
(a) at the opening of an Account, the Member shall pay the Minimum Low Balance Level, the Chosen Top-Up Amount by a Payment Method and in case of the purchase of the Tag the Tag Purchase Cost ; and
(b) the Administrative Monthly Fee will be automatically charged pursuant to the Mandatory Mandate during each calendar month; and
(c) after the Payment of the Chosen Top-Up Amount at the opening of an Account, the Chosen Top-Up Amount will be automatically replenished pursuant to the Mandatory Mandate; and
(d) the Member agrees to maintain sufficient funds or credit limit on their account to pay the automatically recurring payment or charge; and
(e) the Account Service Fee will be automatically charged when a credit is applied to an account.
(f) Upon request, the Member can receive by email free of charge a warning each time the Low Balance Level is reached on the Member’s Account. If the Member chooses to receive this warning by SMS, an amount of fifteen cents (15 cts) shall be paid automatically to the Service Provider pursuant to the Mandatory Mandate in addition to the amount to be paid pursuant to 6.3 (b); and
(g) the fees related to any service provided by the Service Provider will be payable through the identification of the Member by the Tag or other identifier pursuant to clause 3.2.3 of this Agreement following each time a Member uses a service; and
(h) the Toll and the Car-Park fees payable in respect of the use of any Toll Road or Car-Park and fees relating to any other services may be increased from time to time and any such increases shall become immediately binding upon the Member; and
(i) if the Member cancels or alters their Payments or their Mandatory Mandate the Member shall within twenty-four (24) hours notify the Service Provider of such cancellation, alteration or intention; and
(j) the Member is not entitled to interest on any sums received by the Service Provider pursuant to the Agreement hereof; and
(k) the Member must notify the Service Provider of any change of vehicle classification or of his/her name or address or registered office, as the case may be within seven (7) days of the occurrence of the change; and
(l) the Member must notify the Service Provider of any changes with respect to his/her credit card details and/or account information and/or debit card information as set out in the Account Application Form; and
(m) the Member acknowledges that their bank will forward up to date details of their VISA or MasterCard when the card expires depending on the banking arrangement;
(n) in the event the Member uses its Tag with vehicles of a different Class of Vehicle from the Class of Vehicle indicated on the Account Application Form, the Service Provider will charge the Member the Tolls and Car-Park fees depending on the Class of Vehicle to which the Tag relates when used.
(o) The Service Provider may apply a Spare Tag Fee to rented Tag(s) on an Account where no Services are assigned.
6.4 The Member acknowledges that with respect to Inter-operability and Compatibility:
(a) the Member will be able to affect the discharge of a Toll by means of ETC in respect of Toll Roads unless he/she has chosen the parking only services Product; and
(b) the Member will be able to pay the fees relating to any other service provided by the Service Provider; and
(c) the Member will be able to alter the chosen Products at any time by amending the Account status and the amendments will be effective within twenty-four (24) hours; and
(d) the Service Provider shall be entitled to payment of the fees in accordance with clause 6; and
(e) the Service Provider shall also be entitled to payment of the Roaming Fee where applicable; and
(f) in the event that a Member purchases a tag from another service provider or operator and wishes to use in the same vehicle this tag together with a Tag, the Service Provider cannot be responsible of any dysfunction of neither the Tag nor the other tag.
6.5 The Service Provider reserves the right to change payment settings on a Member account. The top up amount and replenishment trigger level should, as a minimum, equal an average of 2 weeks of all transactions on the account.
7 PAYMENT OF SERVICE FEES AND CHARGES
7.1 The Service Provider shall be entitled to a Payment in respect of the services provided and any other sum and charge due to it pursuant to the Agreement and clause 6 in particular. It should be noted that The Service Provider does not determine the vehicle classification, Toll and/or Car-Park fees charged at the Toll Roads and/or Car Parks. Charges are determined by the operators of the Toll Roads and/or Car Parks in accordance with either the relevant Toll Bye-Laws or the car park operator whichever is applicable. Charges relating to other services offered by the Service Provider shall also be paid in accordance with the relevant charge of the service which is a matter for the Supplier. The Member acknowledges that the VAT in respect of Toll is collected by the Service Provider on behalf of Toll Road operators. From time to time, Car Parks Operators may run seasonal or ad-hoc promotions that will not be applicable to the toll tag meaning Easytrip customers may not always be included in same.
7.2 In case of the purchase of the Tag, for the cost of the Tag please see schedule of charges at www.easytrip.ie for further details.
7.3 The Administrative Monthly Fee is calculated pursuant to the table indicated on the webpage of the Service Provider to be updated from time to time by the Service Provider.
7.4 The Service Provider shall provide a Statement to the Member setting out the transaction history. The charges applicable to the provision of such Statement vary depending on the form of the Statement requested by the Member as specified in the Account Application Form. Upon request, the Member may obtain a paper copy of any Statement at an additional charge (see schedule of charges at www.easytrip.ie for further details) to be paid by the Member to the Service Provider together with the Administrative Monthly fee pursuant to 6.3 (b|) each calendar month.
7.5 Each time a Tag is used on a Toll Road or in a Car-Park, or for another service whether by the Member or by anyone else, authorised or not, the Toll or fee is to be paid by the Member. Should the Tag fail to properly discharge the Toll or Car-Park fees at the Toll Road or Car-Park for any reason, or the fee for another service, the Toll Road or Car-Park operator or Supplier may request the Member to discharge the Toll or Car-Park fees by cash or credit card (or other means of payment).
7.6 Where a Rejected Payment occurs, at the opening of an Account this is treated as a Black-Listed Event pursuant to clause 10.
7.7 The Service Provider must be notified of any dispute(s) of Transaction Fees appearing on a Member account immediately but no later than sixty (60) days of the charge being applied to the Member account. All disputes are subject to a review and approval by the respective toll road operator, Car-Park Operator or other Operator and The Service Provider may require additional documentation or evidence from the Member.
7.8 The Service Provider reserves the right to apply an account service fee at any time.
7.9 There may be a higher monthly administration fee applied to accounts where the Member has leased their Tag than there is for the Member who has purchased their Tag. If a Member changes from Leasing their Tag and Purchases same, the new rate of monthly administration fee shall apply from the month after the Purchase of the Tag where applicable.
7.10 These Terms and conditions constitute the Members authorisation to The Service Provider Service Provider to automatically and on a recurring basis charge your credit card or debit card in the amount of the total balance due on your The Service Provider Statement. You acknowledge that by providing the information requested by the Service Provider to set up automatic recurring payments and by clicking “I have read and accept the Terms and Conditions” that you have read and understood these terms and conditions and that you have agreed to them.
8 CANCELLATION OF THE ACCOUNT BY A MEMBER BEING A CONSUMER
Where a Member is a Consumer, he or she is entitled to exercise a statutory right of cancellation of his/her order and cancel the Agreement Within ten (10) days of the opening of an Account by notifying the Service Provider. Where the right of cancellation applies and is exercised by the Member, the Member will return the Tag to the Service Provider within ten (10) days in its original packaging and at the cost of the Member to the Service Provider at the Service Provider’s Point of Sale. Upon receipt of the returned Tag, the Service Provider will reimburse the Minimum Low Balance Level, the chosen Top-Up Amount and the Tag Purchase Cost in case of a purchased Tag. However, where the Tag is used within the ten (10) day period, the Member shall not be entitled to exercise his/her right to cancel the Agreement.
9 BLACK-LISTING
9.1 The following events shall be considered as Black-Listing Events:
(a)The Minimum Low Balance Level is reached and there is a failure of the Automatic Replenishment by the Service Provider of the Member’s Account when the Minimum Low Balance Level is reached; or
(b) Rejected Payment at the opening of an Account pursuant to clause 7.6; or
(c) Un-notified change or update of credit card, debit card or bank account details by the Member and/or by the Bank; or
(d) Stolen, lost or damaged Tag pursuant clause 4; or (e) Misuse of a Tag.
9.2 On the occurrence of a Black-Listing Event, the Service Provider and its agents will have the ability to deactivate manually and black-list the Tag by including the Tag ID in the Black-List. The Member is not entitled to use the Tag until the Black-Listing Event is remedied. The Member will be notified of the occurrence of a Black-Listing Event by the Service Provider by email and will be charged if sent upon Member’s request by SMS.
9.3 In the case of the occurrence of the Black-Listing Events (a), (b) or (c ), the Member will then have to remedy the situation by paying by another Payment Method as the Payment Method that lead to a Black-Listing Event or by having his/her credit card, debit card and/or bank account details updated and/changed as appropriate. The Member shall notify the Service Provider that the Automatic Replenishment and/or the Payment by the Payment Method is again possible. The Service Provider will then be entitled to proceed to an Automatic Replenishment if that remedies the Black-Listing Event. In case of the occurrence of the Black-Listing Event (d), clause 4 applies. In case of the occurrence of the Black-Listing Event (e) clause 10 applies.
9.4 In case of the Member being reluctant to cure the Black-Listing Event within a period of fourteen (14) days, the Account shall be closed, and the Agreement shall be terminated pursuant to clause 10.
10 TERMINATIONS
10.1 The Service Provider may terminate the Agreement and terminate the right to use all services at any time with prior notice if:
(a) the Member has cancelled or altered his/her Mandatory Mandate for whatever reason; or
(b) having been notified of a Black-Listing Event, the Member is still in breach of its obligations fourteen (14) days or more (or such other reasonable term as the Service Provider may determine from time to time) after the Black-Listing of the Tag pursuant to this Agreement and clause 9 in particular; or
(c) where the Member, in the opinion of the Service Provider, is liable for Misuse or has made use of the Tag in an unauthorised or unlawful manner pursuant to clause 5 and this is not remedied for fourteen (14) days; or
(d) the Member is in material breach of any other terms of the Agreement if such breach is incapable of remedy or, if capable of remedy, such default continues un-remedied for thirty (30) days after notice thereof has been given by the Service Provider to the Member.
10.2 This Agreement may be terminated by either party by giving a seven (7) days’ notice by fax, post or email, (for the Service Provider via the Service Provider’s website) to the other party. The Member must confirm in writing the request to close his/her Account.
11 CONSEQUENCES OF TERMINATION
11.1 Immediately upon receipt of notice of termination:
(a) The Member will return the Tag(s) to the Service Provider where applicable, pursuant clause12 ; and
(b) where requested by the Member and within fifty-six (56) days of termination, the Service Provider shall prepare and submit a statement showing the total amount received from the Member including the total amount of the Administrative Monthly Service fees, the Tolls, the Car-Park fees and the Roaming Fees or other sums and such other information the Service Provider deems appropriate to indicate the entries that have been made on the Member’s Account since the last Statement was issued to the Member; and
(c) if the said Statement indicates that there is a Positive Balance on the Member’s Account, the Service Provider shall, at the same time as forwarding the Statement, make a refund to the Member for the sum equivalent to the Positive Balance by either the same method of payment as the Payment Method used by the Member or by cheque; and
(d) If any Administrative Monthly Fee pursuant to this Agreement is unpaid to the Service Provider, the Member will remain responsible for all such amounts. If such unpaid charges are not promptly recovered by the Service Provider, the Member may become liable for additional service charges, fines, or penalties, in accordance with applicable law.
11.2 Any consequences of termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies accrued to the parties.
11.3 If an account remains inactive for a period of 6 months or such other period as Easytrip may advise, easytrip reserve the right to close the account and all unused credit will be lost.
12 RETURN OF TAGS
12.1 The Member agrees to return the Tags to the Service Provider, by post or by delivering it to the Service Provider at the Service Provider’s Points of Sale;
(a) upon request by the Service Provider if the Service Provider notifies the Member that it intends to replace a Tag;
(b) where a Tag is notified as defective or damaged or is found following a notification that it was lost or stolen pursuant to clause 3.3 and clause 4;
(c) A warranty period of one year (1) applies to a tag sold to a Member if defective. The warranty period commences once the tag is assigned to the Member account. If a purchased Tag is returned to The Service Provider following the warranty period no refund will be provided.
(d) the Member being a Consumer has exercised their right of cancellation pursuant clause 8.
12.2 Where a Member fails to return a rented Tag(s) in accordance with clause 12.1, within fifteen (15) days of being obliged to do so, or if a rented Tag is returned damaged or tampered with, the Service Provider may impose a charge (see schedule of charges at www.easytrip.ie) in respect of a Tag on the Member, such charge to be payable to the Service Provider out of the Minimum Low Balance Level. The Service Provider may apply a Spare Tag Fee to unreturned rented tag(s) on an Account where no Services are assigned until the Tag is returned in accordance with this clause 12. Following Termination of this Agreement the Member shall receive from the Service Provider the refund of the Positive Balance of its Account pursuant clause 13 less the cost of the unreturned rented Tag (see schedule of charges below).
12.3 If the Member has subscribed to more than one (1) Tag, they are entitled to return a rented Tag at any moment to the Service Provider by post or deliver it to the Service Provider at the Service Provider’s Points of Sale. As a consequence their Account is not closed and the other Tags may still be used. The Administrative Monthly Fee to be paid to the Service Provider shall be reduced in proportion of the Tag(s) returned.
13 REFUNDING
The Service Provider shall refund the Member under the following circumstances:
(a) after the termination of this Agreement pursuant to clauses 10 and 11, or
(b) incorrect charge has been applied by a Toll collector or other service provider.
14 COMPLIANCE
The Member shall comply with any instruction for the use of the Tag issued by the Service Provider from time to time pursuant to this Agreement and with all applicable laws including, without prejudice to the generality of the foregoing, any bye-laws or regulations created thereunder.
15 AMENDMENTS TO THE ACCOUNT STATUS
The Member shall be allowed to alter his/her Account status by notifying the changes to the Service Provider pursuant clause 6.
16 AMENDMENTS TO AGREEMENT
The terms and conditions of the Agreement including the Administrative Monthly Fee, the Minimum Low Balance level, the Minimum Top-Up Amount and any other charges payable by the Member to the Service Provider under this Agreement may be changed by the Service Provider at any time and any such changes will be notified to the Member prior to coming into effect. The Member will be deemed to have accepted any such changes within fourteen (14) days of the notification or when the Member uses his/her Tag after the date of notification, whichever is the shorter.
17 DISCLOSURE OF INFORMATION AND DATA PROTECTION
17. How we may use your information and personal details if you are dealing with us as an individual
17.1 We and our group companies may use your information and personal details collected under this Agreement or collected under additional agreements for other specific productsor services offered by us for a variety of purposes as set out below, in any additional agreements for other products or services offered by us and in our Privacy Policy.
17.2 We will use information and personal details we hold about you for a variety of purposes including operating, developing, providing, promoting, and improving the Services and in order to provide you with the services requested by you and for the provision of marketing information about our own products and services and the products and services provided by elected partners and other third parties “Suppliers”. When we provide you with marketing information we will do this by SMS, email, phone, post or through any other contact channel which you have registered with us and which is relevant to the purposes of the specific product or service as set out in our Privacy Policy. We will do this both during the period when you are a Member and for a reasonable period of time after you are no longer a Member (“win you back‟ or win back marketing) in order to inform you about products, services, or promotions and special offers which we feel might be of interest to you. If you do not wish to receive such marketing information please contact the Service Provider’s Call Centre on 1890 67 67 68 to amend your preference. The Privacy Policy is kept under constant review and amendments may be made to it to align with changes in the Service Provider practices and products or services, address an issue identified by internal audit and review, in response to a finding from the Office of the Data Protection Commissioner, or amendments to the governing law or regulatory environment. Such changes will not constitute a material change to this Agreement.
17.3 Certain products or services offered by us to you, or where you wish to avail of Third Party Services, may require us to pass your information and personal details to third parties to meet our obligations to you. Where this happens it will be done under appropriate standards required by law
and for specific purposes. Easytrip will shortly begin offering further products and services. In doing so, easytrip may ask for your permission to contact you at a future date to offer you the opportunity to avail of these products. Your information will only be used to allow us contact you. The minimum amount of your information will be used to allow us to contact you
17.4 Where you have indicated your permission and preferences we may use your location and service usage data to provide certain services or functionality or to better understand your usage of our services and generally for the purposes set out in Section 17.1 and 17.2 and in more detail in the Privacy Policy.
17.5 We encourage you to look at our Privacy Policy as by entering into this Contract with us you explicitly agree to the use of your information and personal details as set out in 17.1, 17.2, 17.3 and 17.4 above. Your information and personal details will be retained for a reasonable period of time in a secure environment. Further information on how we obtain, hold and use your information and personal details is available in our Privacy Policy which forms part of these Terms and Conditions for Services. The Privacy Policy is available on www.easytrip.ie.
18 COMMUNICATION/NOTICES
18.1 Where either party is required to notify the other according to the Agreement or otherwise wishes to communicate with the other party such notice or communication may be served, in the case of the Service Provider on the Service Provider’s website, by posting by recorded delivery post or delivering the same or delivering same to the Service Provider, [EA House, Damastown Industrial Park, Mulhuddart, Dublin 15, Ireland, or, in the case of the Member by posting by recorded delivery post or delivering the same or email (where an email address has been provided by the Member) to
the address last notified to the Service Provider.
18.2 Any notice or other communication so served shall be deemed duly served forty-eight hours (48) after posting or upon delivery or at the time of transmission or sending depending upon whether it is sent by post, delivered, sent by facsimile or by email respectively.
18.3 If notification is by telephone or in person it will only be effective if confirmed by notice served in accordance with this Clause 18 within seven (7) days. 18.4 The Service Provider may also notify Members of changes to this Agreement by publishing a notice of such changes on the Service Provider’s website, from time to time, provided however that such changes shall not come into effect until at least seven (7) days after such publication. For any modifications please visit www.easytrip.ie
19 ASSIGNMENT
19.1 The Service Provider may assign, transfer or otherwise dispose of its rights, obligations and interest in or under the Agreement to any person at any time.
19.2 The Member may not assign, transfer or otherwise dispose of its rights, obligations and interest in or under the Agreement.
20 FORCE MAJEURE
If the use of any service/product is prevented or hindered by any matter beyond the control of the Service Provider including but not limited to acts of God, acts of government, strikes, lockouts, industrial disputes, winds, fire, lightning, aircraft, explosion, flooding, drought, riots, civil commotions, acts of war, malicious mischief or theft then the performance of the Agreement shall be suspended without any liability on the part of the Service Provider until such prevention or hindrance comes to an end.
21 LIABILITY
This clause sets out the Service Provider’s liability to the Member under the Agreement.
THE MEMBER’S ATTENTION IS DRAWN TO THE PROVISIONS OF THIS CLAUSE IN PARTICULAR.
21.1 To the maximum extent permitted by law, any and all liabilities of the Service Provider (whether under contract, tort (including negligence) or otherwise) arising out of or in connection with a Tag (including without limitation, the Tag failing to function, being included in the Black-List, deactivated or the Misuse of the Tag) are hereby excluded.
21.2 Neither the Service Provider nor its agents will have any obligation or liability with respect to the Member’s use or the performance of the Tag. The Member’s sole and exclusive remedy from the Service Provider and its agents will be the replacement of any defective hired Tag(s) free of charge for the Member, a warranty period of one year (1) applies to a tag sold to a MEMBER if defective and the replacement of a damaged, stolen or lost Tag at the charge (see schedule of charges at www.easytrip.ie) pursuant to Clause 3.3 and Clause 4 of this Agreement.
21.3 The Service Provider shall not be liable to the Member for any loss of profits, goodwill, business opportunity or any type of special, indirect or consequential loss incurred by the Member, whether directly or indirectly.
22 MISCELLANEOUS
22.1 The terms and conditions set out herein constitute all the terms and conditions of the Agreement and supersede any prior terms and conditions. The Member acknowledges that he/she has not relied upon any representation save for any set out in these terms and conditions.
22.2 The interpretation of the Agreement shall be governed by Irish Law and the Irish courts have jurisdiction to resolve any dispute in relation to the Agreement.
22.3 There shall be no waiver of any terms or conditions unless such waiver is evidenced in writing and signed by the waiving party. No omission or delay on the part of either party in exercising any right, power or privilege here under shall operate as a waiver, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof of any other right, power or privilege.
22.4 The rights and remedies herein are cumulative with and not exclusive of any rights or remedies provided by law. Except as expressly stated in this Agreement, any and all representations, warranties and undertakings, express or implied are hereby excluded.
23 PROVISIONS SEVERABLE
Each of the provisions contained in this Agreement shall be severable and distinct from one another and if any one or more of such provisions are now or hereafter become invalid, illegal or unreasonable, the validity, legality and enforceability of the remaining such provisions shall not in any way be affected, prejudiced or compared thereby.
Table of contents
Part A GENERAL PROVISIONS
1. Scope of the General Terms and Conditions (DKV-T&Cs)
2. Purpose of contract, establishment of contract, and credit limit
3. Legitimation objects and intended purpose
4. Third parties authorised to use the LEOs
5. Use of LEOs; verification
6. Ownership of LEO, replacement, return, and blocking of LEOs to be handed over
7. Duties of care, liability of the customer and release from liability
8. Establishment of individual contracts for the procurement of deliveries and products/services
9. Prices and service fees as well as other costs and expenses
10. Invoicing, verification of invoice and determination of invoice amount, objections/claims, direct debit
11. Due date and interest for default, exceedance of the term of payment, payment conditions, offsetting and right of retention.
12. Prohibition of usage and blocking
13. Termination of the business relationship; informing of service partners
14. Retention of title for deliveries and products/services
15. Notification of defects and liability for defects
16. Liability
17. Statute of limitations
18. Provision or augmentation of securities
19. Information; customer’s obligation to notify
Part B PROTECTED CUSTOMER AREA AND DKV E-INVOICING
20. Online access to DKV’s protected customer area
21. E-invoicing
Part C INCLUSION OF SERVICE PARTNER GUIDELINES, TERMS OF USE, DEVICE-SPECIFIC INSTRUCTIONS, AND TOLL GUIDELINES
22. Inclusion of service partner guidelines, terms of use, and device-specific instructions
23. Consolidation of toll guidelines
Part D FINAL PROVISIONS
24. Transfer of contract
25. Choice of law
26. Severability clause
27. Place of jurisdiction
28. Confidentiality of individual contractual terms
29. Processing of data and data protection
30. Validity and interpretation for foreign customers
Part A GENERAL PROVISIONS
1. Scope of the General Terms and Conditions (DKV-T&Cs)
a.) General scope: These General Terms and Conditions (“DKV-T&Cs”) apply for the entire contractual relationship, between DKV EURO SERVICE GmbH + Co. KG, Balcke-Dürr-Allee 3, 40882 Ratingen, Germany (“DKV”) and the DKV customer (“customer”) in the respective prevailing version. Upon termination of the contractual relationship, these DKV-T&Cs shall continue to apply until the complete fulfilment of the business relationship. Conflicting or deviating terms from the customer are not binding even when DKV fulfils the contract without explicitly objecting to such terms. This version supersedes all earlier versions of the General Terms and Conditions.
b.) Validity of other special terms: For special deliveries and products/services and/or legitimation objects (hereinafter also “special products/services”), DKV may specify special terms (hereinafter “special terms”). Special products/services may include e.g.: electrical and gas-powered transportation, toll and vehicle services, digital services, as well as those which serve the procurement of deliveries and products/services outside the scope of the Federal Republic of Germany, e.g. in countries with special regulatory requirements. Generally, special terms for special products/services can be viewed on the website www.dkv-euroservice.com/bedingungen-und-richtlinien or in the protected customer area of the DKV Online Service (www.dkv-euroservice.com/portal/en/web/customers/bedingungen-und-richtlinien), where the respective prevailing versions are posted. Upon utilisation of the special products/services, the special terms become a component of the contract if this is not already the case. Furthermore, special terms for special products/services can also be agreed upon separately between DKV and the customer, whereby in this case it is sufficient that the customer submits to DKV an application for procurement of a special product/service after DKV has pointed out the validity of the special terms within the procedure intended for the application. Special terms for special products/services take precedence over these DKV-T&Cs, even when they contain provisions which deviate from these DKV-T&Cs or which contradict them. They may be put into force or modified by DKV according to the provisions applicable for modifications to the DKV-T&Cs (section 1 (c)). Upon request by the customer, DKV shall provide the customer with the special terms on paper.
c.) Modifications: DKV is entitled to modify these DKV-T&Cs with effect for the future. DKV shall inform the customer of this in writing without the modified terms needing to be conveyed in their entirety; it shall suffice to provide notice of the fact of the modification, also in electronic form. The respective prevailing DKV-T&Cs can be freely accessed on the website at www.dkv-euroservice.com/agb. If it is not possible to access them in this manner, DKV will send the customer the DKV-T&Cs at no cost upon request either electronically (e.g. email) or on paper (e.g. via snail mail). Unless the customer objects in writing within two months of receipt of the notification of the modification, he shall be seen as having consented to the modification. DKV shall point out the right of objection in the respective notification of modification.
2. Purpose of contract, establishment of contract, and credit limit
a.) DKV allows its customers to cashlessly acquire or utilise deliveries and products/services related to the operation of a motor vehicle and which are offered via DKV from contractually affiliated service partners and their service points (“service partners”).
b.) The business relationship between DKV and the customer is established either based on a written contract between the customer and DKV or an application submitted by the customer, with which he accepts and acknowledges these DKV-T&Cs as well as DKV’s confirmation letter, but no later than upon acceptance of the legitimation objects (“LEOs”) sent to the customer by DKV.
c.) In the confirmation letter/contract, DKV grants the customer a particular credit limit (“CR”) and a certain payment term. The customer is only permitted to use the LEOs specified in section 3 within the confines of the credit limit granted by DKV and in accordance with his credit rating and liquidity situation to the extent that payment of DKV claims when they are due is guaranteed. The CR is the maximum amount up to which the customer is allowed to utilise DKV’s deliveries and products/services. The customer shall undertake to remain apprised of the current status of his CR via the DKV customer service or via the protected customer area of the DKV Online Service (currently DKV Cockpit). DKV is entitled to monitor adherence to the CR. Specific mention is made here of the right to block all LEOs pursuant to Section 12 (b) (1). Even when the CR granted is exceeded via the usage of the LEOs, DKV shall be entitled to require payment of the deliveries and products/services or other costs incurred as a result of the unauthorised usage of the LEOs.
d.) DKV is entitled, according to reasonable discretion, to unilaterally increase or reduce the CR pursuant to section 315 of the Civil Code (BGB) and shall inform the customer of this in a suitable form chosen at DKV’s discretion: by phone, via email, or in other text form. At the same time, the modified credit limit will be accessible for the client via the protected customer area of the DKV Online Service (currently DKV Cockpit). DKV is permitted to perform the reduction of the CR with a notice period of at least 5 days and for cause with immediate effect. In particular, cause is given when one of the reasons specified in section 12 (b) exists. The amount of the reduction is to be determined according to reasonable discretion. DKV may grant an increase in the CR with immediate effect. The customer can also agree upon an increase in the CR with DKV. This increase requires written confirmation from DKV.
e.) If the customer also utilises deliveries and/or products/services of other companies in the DKV Group, DKV may also define the credit limit as the maximum amount up to which the customer is permitted to utilise deliveries and/or products/services from various companies in the DKV Group (“overall credit limit”).
3. Legitimation objects and intended purpose
For the fulfilment of the contractual purpose, DKV provides, based on the information in the customer application itself or together via affiliated partners, the customer with one or more cards, DKV Mobile CARD Application(s) (“app”) or other devices and equipment for recording the deliveries or products/services utilised, which in these DKV-T&Cs are jointly referred to as legitimation objects (“LEOs”).
a.) Cards issued and/or distributed by DKV: The cards issued and/or distributed by DKV, both currently and in the future (“CARDs”) such as the DKV CARD and co-branded cards entitle the customer, within the validity period specified on the CARD and where indicated, for the specified motor vehicle, to cashlessly acquire goods or utilise work performance and services as well as other products/services from the domestic and overseas service partners contractually affiliated with DKV, in certain cases also directly from DKV, exclusively for commercial and vehicle-related purposes. Private usage is prohibited. The entitlement to procure goods or utilise work performance and services as well as other products/services can be limited by DKV — where intended — by a permission level (restriction code = RC) and card type, which is visible from the card, selected by the customer during the submission of the application. For any other authorised usage of the CARD, the customer cannot, in later objections to invoices, claim that the use of the CARD for goods acquisition or for the utilisation of work performance, services, or other products/services did not serve a commercial and vehicle-related purpose.
b.) DKV Mobile CARD Application (“app”): The DKV Mobile CARD Application grants the customer the usage of a CARD in an electronic fashion. The respective special usage and licensing terms designated by DKV apply for the app. The use of the app requires the customer to provide a compatible mobile end device that is free from malicious software (viruses/trojans etc.) and serviceable in every regard, as well as the compatibility of the operating system on the end device used with the (e.g. in the respective app store) designated operating system. Furthermore, the end device used requires internet access, which may incur additional costs for the customer. Other than the download for the installation of the app, DKV provides neither hardware (e.g. mobile end devices) nor software (e.g. firmware/ operating system) nor mobile telephony services. DKV does not provide any guarantee that the customer’s mobile end device will be compatible with the technical requirements for usage of the app. Furthermore, DKV does not provide any guarantee that the products/services of the mobile carrier to be chosen by the customer will be sufficient for using the app, for example with regard to network coverage, existing mobile service capacities, breakdowns or malfunctions etc.
c.) Other devices and equipment for recording data: In addition, either itself or via service partners, DKV also provides other devices and equipment from DKV (“proprietary devices”) as well as from service partners (“third-party devices”) which serve to allow for products/services to be utilised and/or such use to be recorded, in particular with regard to road use fees (toll). Applications for proprietary and third-party devices can either be viewed by customers at www.dkv-euroservice.com, or they will be provided in the protected customer area of the DKV Online Service. The applicable device instructions and guidelines for the respective devices will become a component of the contract upon the devices being handed over, if this is not already the case. The respective current guidelines for proprietary devices can be viewed at any time either in the protected customer area of the DKV Online Service or on the website www.dkv-euroservice.com. In addition, for DKV’s device-specific instructions and guidelines, the provisions for special terms (section 1 (b)) apply. The customer shall handle all devices carefully and gently. Usage is only authorised for commercial and vehicle-related purposes; private usage is prohibited.
d.) Signatureless ordering and management of LEOs: Where intended by DKV, the customer may, via a form sent to DKV via email or via a DKV Online Service Portal (e.g. DKV Toll Online Manager), apply for LEOs or place orders related to the management of the LEOs (e.g. disable cards). DKV points out explicitly that reference is made to the legally binding nature of the order, including the inclusion of special terms and/or guidelines (cf. sections 1 (b) and 22), either in the form transmitted or within the DKV Online Service Portal, and that no signature from the customer is then required.
e.) Use of the LEOs in Italy: In cases where DKV has entered into a subscriber agreement with Italian suppliers for the ordinary and usual requirements for certain goods as defined in Art. 1559 of the Italian Civil Code (“Codice Civile”) and/or entered into a service contract and/or contract for work and labour with such suppliers, the LEO entitles the customer and his vicarious agents and assistants to utilise regularly recurring and continuous deliveries of certain goods as defined in Art 1559 Codice Civile for ordinary and usual requirements and/or to utilise the services at their service points cashlessly. Information on existing subscriber agreements and/or service contracts and/or contracts for work and labour with Italian suppliers can be found on the DKV website (www.dkv-euroservice.com). The customer shall be notified of changes to existing contracts with Italian suppliers periodically, generally quarterly, in the information line of the consolidated invoice, accompanied by the note that the details of the relevant modifications can be accessed by the customer on the aforementioned website. All other goods, work performance or services utilised cashlessly via a LEO in Italy shall be provided to the customer as third-party deliveries.
f.) Performance of actions and legal transactions for the customer: Where permitted by the service partner pursuant to section 3 (c), DKV is entitled to perform the registration and administration (e.g. modification of vehicle and customer data) of the LEO for the customer with the service partner and to perform legal transactions for this purpose if they correspond to the actual or presumed will or interest of the customer.
4. Third parties authorised to use the LEOs
a.) Third parties authorised for use: The usage of the LEOs by persons other than the customer and his vicarious agents and assistants or for vehicles other than those specified (“third parties”) requires prior written consent from DKV or a written agreement.
b.) Naming of third parties: At any time, DKV may require that the customer specify the third parties which the customer has handed the LEO over to for usage, in addition to providing their addresses and samples of their signatures. If the customer does not comply with this request, DKV shall be entitled to prohibit further usage of the affected LEOs with immediate effect.
c.) Subcontractors: In individual cases and where permissible, DKV may, based on a separate written agreement with the customer and his subcontractor, permit the LEO to be transferred to the subcontractor. For every such transfer to a subcontractor, the customer and the subcontractor shall be jointly and severally liable. The details of this transfer between DKV, the customer, and the subcontractor are to be agreed upon in writing.
a.) Legitimation verification: The service partners have the right to verify the authorisation of the owner of the LEO, but are not obliged to do so. For this purpose, they may require the owner of the LEO to present official identification documents, the registration certificate of the motor vehicle or the vehicle lease contract, and decline deliveries and products/services if there exists the suspicion that the LEO deployed is used in an unauthorised fashion, expired, or blocked.
b.) Debit voucher and voucher verification: If a debit voucher/delivery slip is generated at the service point, it is to be signed by the user of the LEO where this is technically intended. Before signing, the user of the LEO is to verify whether the debit voucher/delivery slip has been correctly issued, in particular the information on the deliveries and products/services utilised, and whether their nature, quantity, and/or price are correct. When the voucher is signed, the signature is not verified by the service partner; this is not part of the contract.
c.) Voucherless usage: If no debit voucher/delivery slip is generated at automated service points due to technical reasons, the utilisation of the LEO takes place via the use of the terminals or other designated technical equipment according to directions. Where designated, the customer or his vicarious agents and assistants are to verify their authorisation by entering a personal identification number (“PIN code”) that was previously provided by DKV. If the PIN code is entered incorrectly three times, the LEO will be deactivated due to security reasons. In this case, the customer is to contact DKV without delay. When ordering goods or utilising products/services directly from DKV, the customer is to verify his authorisation by providing his customer name and the customer number.
6. Ownership of LEO, replacement, return, and blocking of LEOs to be handed over
a.) Ownership of LEO: Unless otherwise agreed upon, the LEO shall remain the property of DKV or the third party who was the owner of the LEO at the point in time the LEO was transferred to the customer.
b.) Replacement of LEOs: Customers are to report any damage to or functional errors in the LEO to DKV immediately. DKV will then exchange the customer’s LEO with a new one. For third-party devices, the customer is to contact the service partner. If there exists damage or functional errors for which the customer is at fault, DKV may require the costs for the replacement to be reimbursed in order for an exchange to be made. Any claims DKV may have against the customer due to such damage and functional errors remain unaffected by this.
c.) Return of LEOs: After expiry of the validity period, after cancellation or deregistration of a LEO, the end of the business relationship, as well as when they are blocked (section 12), invalid, or damaged such that their functioning is negatively impacted, the LEOs are to be handed over to DKV without delay and without needing to be requested to do so. If a LEO consists of CARDs, they are to be destroyed by the customer and deregistered under www.dkv-euroservice.com/DKVCockpit. Alternatively, the customer may also send the declaration of destruction to his customer service representative. For devices and equipment as described in section 3 (c), the respective guidelines take precedence. Third-party devices can be returned to the service partner. The DKV Mobile CARD Application, apps or other applications for mobile end devices are to be uninstalled. The customer shall have no right of retention to the LEO.
d.) Blocking of LEOs to be handed over: DKV is entitled to have LEOs which are to be handed over by the customer pursuant to section 6 (c) blocked for DKV service partners. The provisions in section 12 remain unaffected.
7. Duties of care, liability of the customer and release from liability
a.) Storage and use: The customer and his vicarious agents and assistants shall undertake to store and use all LEOs with particular care in order to prevent them being lost and/or misused. CARDs, in particular, are not to be stored in an unsupervised vehicle or rooms which are not protected against unauthorised access. The customer is to ensure that his vicarious agents and assistants comply with these obligations.
b.) PIN code: If the customer is issued a personal identification number (“PIN code”), it is to be handled with strict confidence and only disclosed to parties authorised for usage. In particular, the PIN code is not to be noted down on the CARD or stored in some other unsealed fashion or together with the devices specified under section 3 (c). The customer is to ensure that the party he hands the LEO over to takes all necessary and reasonable precautions for the use of the LEO in order to prevent the PIN code and/or the magnetic strip data from being obtained by unauthorised parties.
c.) Reporting and notification obligations upon the loss of a LEO: If the customer and/or his vicarious agents and assistants notice the loss or theft of the LEO handed over to him, the misuse or any other unauthorised usage of the LEO or the PIN code, or if the customer has the suspicion that another person has obtained unauthorised possession of a LEO or PIN code, or that any misuse or other unauthorised usage of a LEO or PIN code has taken place, DKV is to be notified of this without delay (“blocking notification”). The blocking notification can be submitted by phone, via email, fax, or in writing to the contact data provided to the customer upon commencement of the business relationship for the purposes of submitting the blocking notification. The respective latest contact information for submitting a blocking notification can be found on the DKV website (www.dkv-euroservice.com). Upon noticing an unauthorised or incorrectly performed usage of a LEO, the customer is to inform DKV of this without delay. Every theft or misuse is to be reported to the police by the customer and/or his assistants without delay. The customer shall undertake to provide DKV with a copy of the police report.
d.) Liability: The customer is liable for the misuse or use of the LEO and the PIN code in a manner that violates the contract, unless he and the authorised user have taken all reasonable precautions against such use that violates the contract and/or the misuse of the card. In particular, the customer shall be considered to not have taken all reasonable precautions against use that violates the contract or misuse of the card when the misuse or use of the LEO contrary to the contract was facilitated or enabled via the fact that
1.) the LEO was not stored with care (section 7 (a)),
2.) the LEO was not sent back to DKV in its entirety (section 6 (c)),
3.) the PIN code was noted on the DKV CARD or directly linked or stored with the LEO in some other manner (section 7 (b)),
4.) the theft or loss report was not forwarded without delay to DKV upon discovery (section 7 (c)),
5.) the LEO was handed over in an unauthorised fashion to third parties or subcontractors (section 4) or
6.) no new PIN code was requested after the authorisation of a third party for usage of the LEO has lapsed. The customer shall be responsible for violations of the duties of care by persons whom he has handed the LEOs over to.
e.) Release from liability: Provided that the reasonable precautions pursuant to sections
7.) (a) to (c) are complied with, DKV shall release the customer from liability for use of the LEO which takes place after receipt of the theft or loss report by DKV.
8. Establishment of individual contracts for the procurement of deliveries and products/services
a.) Procurement authorisation: The customer is entitled, via the use of the LEO in accordance with the contractual provisions, to cashlessly acquire and/or utilise certain goods and services from service partners affiliated with DKV (goods and services jointly referred to as “deliveries and products/services”).
b.) Freedom of supply on the part of DKV and service partners: Regardless of the credit limit granted, neither DKV nor its respective service partners are obliged to provide deliveries and products/services and/or to enter into individual contracts for the procurement of deliveries and products/services by the customer. Such an obligation only arises once an individual contract regarding the respective contractual delivery/product/service has been entered into. In particular, DKV assumes no liability for the service partners’ ability to provide deliveries/products/services, regardless of whether it is direct deliveries, third-party deliveries, or commissioned deliveries.
c.) Content of the individual contracts:
– Direct deliveries – deliveries and products/services for the customer are performed strictly by DKV under its own name and on its own account (“direct delivery”). DKV and the customer hereby agree that a contract is entered into between them in each case, via which the customer acquires the goods from DKV and/or obtains the product/service from DKV, when the customer obtains a good or service from a service partner which is related to the operation of a motor vehicle and included in DKV’s range of offerings, and the service partner accepts the LEO utilised by the customer for this purpose. This simultaneously establishes the contract between DKV and the service partner regarding the procurement of the goods and services by DKV, provided that DKV has agreed on this with the service partner. However, in cases where the procurement of the goods or services by DKV additionally requires entering into a contract, the customer enters into this contract with the service partner as a representative of DKV by utilising the LEO, with the service partner accepting its use. For a direct delivery, the service partner is not authorised, with a binding effect for DKV and at its expense, to agree upon extensions to the statutory scope of performance or deviations from these DKV-T&Cs and/or to provide warranties that are binding for DKV.
– Third-party deliveries and commissions – in cases where the direct delivery cannot be agreed upon with the service partners, DKV will instead proffer their range of offerings; in this case, the deliveries and products/services will either be provided directly by the service partner to the customer and DKV acquires the resulting claims against the customer for a fee from the respective service partner which has accepted the LEO (“third-party delivery”), or DKV provides the deliveries and products/services to the customer in its own name, but for account of the service partner due to corresponding contracts with the service partner (“commission”). In the case of a third-party delivery, the customer hereby agrees to the respective cessions of the claims of the respective service partner against the customer to DKV. In the case of a third-party delivery, the customer shall undertake to reimburse and/or pay DKV for all claims consisting of the respective claim amount plus the prices and service fees specified in section 9 of these DKV-T&Cs. In the case of third-party deliveries, DKV shall not assume any obligations for the individual contract with regard to the provision of deliveries and products/services to the customer. In the case of a commission, the deliveries and/or products/services will be provided to the customer by DKV, and the customer is to make payment for them to DKV in accordance with the provisions of the DKV-T&Cs.
9. Prices and service fees as well as other costs and expenses
a.) Prices for deliveries and products/services: For the deliveries and products/services, DKV generally charges the prices visible on site or the usual prices. However, where prices for fuel are concerned, DKV calculates charges based on the current list or pump prices provided by and charged by the service partner himself at the respective point in time of procurement and utilisation of the LEO. In certain cases and in a number of countries, these prices may differ from the pump prices (“pump prices”) specified at the service point. In this case, the price DKV charges the customer also differs from the debit voucher/delivery slip that is generated on site by the service point.
b.) Service fees and card fees: In addition to the deliveries and/or products/services utilised by the customer domestically and overseas, DKV also charges reasonable service fees in the form of percentage surcharges or fixed sums and/or special card fees which are given by the respective list of service fees for the respective customer country or separately agreed upon with the client and prevailing at the respective point in time of utilisation of the delivery or product/service (hereinafter “list of service fees”). The respective list of service fees in the version valid for the business relationship can be requested from DKV at no charge by the customer at any time. DKV is entitled to modify the service fees and card fees at its own reasonable discretion (section 315 of the Civil Code (BGB)) and to introduce and stipulate new fees for deliveries and products/services and/or expenses which were provided as per the customer’s order or in his presumed interest and which were previously not subject to fees. DKV shall inform the customer of this in writing without the modified list of service fees needing to be conveyed in their entirety; it shall suffice to provide notice of the fact of the modification, also in electronic form (e.g. email) or as information.
c.) Other costs: For bank fees and other costs which DKV incurs for overseas bank transfers, the cashing of cheques, or return debit notes on account of the customer, as well as for any applicable taxes, duties, and other sovereign charges related to the deliveries and products/services (hereinafter jointly “other costs”), DKV may also require the respective customer to reimburse these other costs DKV has been charged for even when this is not listed in the respective prevailing list of service fees as a fee.
d.) Other expenses: When and to the extent DKV incurs internal and external expenses (“other expenses”) due to special customer requests, DKV shall charge the customer a flat fee for expenses which the customer will receive separate confirmation for.
10. Invoicing, verification of invoice and determination of invoice amount, objections/claims, direct debit
a.) Invoicing: Regardless of the currency in which the debit voucher/delivery slip is issued and/or in which currency the delivery or product/service is offered and utilised, DKV shall calculate the resulting claim in the local currency of the customer (currency at the customer’s domicile), unless another currency has been agreed upon for the payment of the DKV invoice. In cases where the customer’s local currency agreed upon for the payment of the invoice or the transaction currency (currency at the site of the delivery/product/service) is not the euro, the conversion shall be performed using the EURO reference rate published by the European Central Bank valid on the respective key date (www.ecb.europa.eu/stats/exchange/eurofxref/html/index.en.html). If no EURO reference rate is available for a particular transaction day, the conversion will take place according to the last available rate which preceded the day of transaction. If conversion takes place from and/or to currencies other than the euro, DKV shall be entitled to charge a reasonable service fee for the option of selecting a payment currency and/or for covering the risk of foreign exchange fluctuations between the day of transaction and the due date of the invoice.
b.) Verification of invoice: The customer is to verify the correctness of DKV invoices without delay and to submit objections to DKV in writing without delay, but no later than 2 months after the date of invoice. After the expiry of the 2-month deadline after the date of the invoice, no claims will be entertained and the invoice amount shall be considered to have been endorsed, unless the verification of the invoice was not possible due to no fault of the customer. This applies accordingly to invoices which DKV provides the customer with as part of e-invoicing (section 21 (b)).
c.) Objections to the invoice: If the customer would like to claim that a delivery and/or product/service he was charged for was not made to him or a party authorised for usage, and/or the debit voucher/delivery slip was generated with the involvement of persons other than the customer or his vicarious agents and assistants in violation of the terms of use, he is to provide notification of this without delay, but no later than within 2 months after the invoice date, specifying all data in the invoice being objected to, in particular the amount, the item in the invoice, and the detailed reasons for his claim. This notification is to be submitted to DKV in writing or via fax along with any available proof without delay.
d.) Review of the claim: DKV shall, with the diligence of a proper businessman, review the payment obligation based on the information provided to him by the customer and the relevant service partner. A claim that has provisionally not been asserted is to be paid as soon as it is determined that the customer is not entitled to a credit note. Provided that the claim has turned out to be unfounded, the customer is to pay interest on the provisionally unasserted claim starting from the original due date with interest on arrears pursuant to section 11 (b) (sent. 1). The assertion of a higher interest rate for default pursuant to section 11 (b) (sent. 2) shall remain unaffected in the case of default.
e.) Direct debit: In cases where the customer is domiciled in a state within the European Union whose national currency is the euro, the customer shall, upon being requested to do so by DKV, undertake to consent to the SEPA direct debit procedure (Single Euro Payments Area, SEPA), and in the case of the SEPA corporate direct debit, to instruct his bank to perform the direct debit deduction when due from the customer’s account accordingly, with the SEPA mandate designated by DKV for this purpose. In each case, the customer shall, no later than one bank workday before the due date of the SEPA direct debit, receive advance information on the execution of the respective deduction. The customer hereby consents to the aforementioned reduction in the advance notification of 14 calendar days before the due date to one bank working day. In cases where the customer is domiciled in a state within the European Union whose national currency is not the euro, the customer shall, in cases where it is not possible for him to arrange for a corresponding SEPA direct debit, grant DKV a direct debit authorisation upon request and instruct his bank to submit the declarations necessary for this purpose. The latter applies accordingly to customers who are domiciled in a state outside of the European Union.
11. Due date and interest for default, exceedance of the term of payment, payment conditions, offsetting and right of retention.
a.) Due date and payment deadlines: The deliveries and/or products/services charged by DKV in an ongoing fashion or for periods agreed upon are payable immediately in full (due date). If DKV and the customer, in derogation to the above, agree upon a performance period according to the calendar (term of payment), DKV shall indicate this separately on the invoice.
b.) Interest: If the customer is a businessman as defined by commercial law, DKV may charge interest amounting to 5 % starting from the due date. In the case of default, DKV is entitled to charge interest for default amounting to 9 percentage points above the base interest rate of the European Central Bank. The assertion of further damages or the right to demand higher interest rates for default remain unaffected.
c.) Exceedance of the term of payment: If the customer is in default with the payment of a (first) invoice, all discounts, rebates, and terms of payment of other invoices shall no longer be valid, regardless of whether they have already been delivered or will be in the future. Such outstanding invoices are to be paid immediately with the overall gross amount even if a later term of payment is indicated on them.
d.) Payment conditions: The right of the customer to determine which claims are fulfilled via payments by the customer shall be waived in favour of the statutory payment regulation pursuant to section 366 (2) of the Civil Code (BGB).
e.) Offsetting and right of retention: The customer shall only be permitted to offset any claims from DKV with counterclaims when his counterclaim is undisputed or has been established in a legally binding manner. However, in the case of claims for defects regarding an individual contract within the framework of direct delivery, the counter-rights of the customer remain unaffected. The aforementioned apply accordingly for the assertion of rights of retention.
12. Prohibition of usage and blocking
a.) With observance of a notice period: DKV may — even without specifying any reasons — at any time with a reasonable notice period and taking into account the justified concerns of the customer, prohibit the use of the LEOs and block them for use with service partners.
b.) Without notice for cause: When cause exists and results in further use of individual or all LEOs and/or the continuation of the business relationship being unreasonable for DKV, DKV may also, without notice and with immediate effect or with a short notice period determined with reasonable discretion, prohibit the use of individual or all LEOs and block the LEOs for use with DKV service partners. In particular, such cause is given
1.) when the customer exceeds the credit limit granted to him without prior approval from DKV,
2.) when the customer has provided incorrect information about his financial situation which was of considerable significance for DKV’s decision regarding the establishment of the business relationship,
3.) when the customer does not fulfil his obligation to provide or increase a security pursuant to section 18 or fails to do so within a reasonable grace period granted by DKV as a result of another agreement,
4.) when a direct debit that is due is not honoured or other outstanding invoices are not paid, unless the customer is not at fault for this,
5.) when the payment method (e.g. SEPA direct debit) agreed upon is unilaterally revoked by the customer,
6.) when the initiation of insolvency proceedings regarding the customer’s assets is applied for, or the customer is obliged to submit information on his financial situation under oath,
7.) when a deterioration in the customer’s financial situation that is not merely insignificant occurs or threatens to occur, in particular when the information obtained about him deteriorate to a degree that is more than insignificant, and this endangers the fulfilment of claims owed to DKV,
8.) when a LEO is handed over to third parties in an unauthorised fashion, or
9.) in the case of reasonable suspicion that a LEO is being used in violation of the contract. c.) General prohibition of usage in certain cases: The customer and his vicarious agents and assistants are prohibited from further usage of the LEO in general, i.e. even without specific notification from DKV, if he is able to determine that the invoices from DKV cannot be paid when they are due or the business relationship has terminated. d.) Informing of service partners: DKV is entitled to inform its service partners of the blocking of the LEOs and/or the termination of the business relationship via IT systems, via the transmission of blacklists, or in some other fashion.
13. Termination of the business relationship; informing of service partners
a.) DKV and the customer are entitled to termination at any time
With observance of a notice period: without specifying any reasons with a reasonable notice period and taking into account the justified concerns of the customer/DKV. The right to prohibit usage of and/or block (section 12) the LEOs remains unaffected.
Without notice period or with a short notice period for cause: provided that reasons exist within the scope of responsibility of the respective other contractual partner which make it unreasonable for the contractual partner to continue the business relationship. In particular, this is the case for DKV when a reason specified in section 12 (b) (1) to (9) for prohibiting usage exists.
If the customer violates his contractual obligations towards another company in the DKV Group from which the customer obtains products/services, and such in a manner that this company is entitled to termination, this shall also entitle DKV to terminate the business relationship.
Formal requirements for termination: Every termination notice must be submitted in writing (e.g. via e-mail).
Informing of service partners: DKV is entitled to inform its service partners of the blocking of the LEOs and/or the termination of the business relationship via IT systems, via the transmission of blacklists, or in some other fashion.
14. Retention of title for deliveries and products/services
a.) Where DKV is the owner, DKV shall retain ownership of the respective delivery/product/service up to the complete fulfilment of all claims from the business relationship, including claims arising in the future, also from contracts entered into with the customer simultaneously or later on, as well as payment balance requests from the current account (“reserved good”).
b.) The customer is entitled to sell the reserved good in the ordinary course of business. DKV is entitled to revoke the customer’s permission of sale via a written declaration if he is in default with the fulfilment of his obligations towards DKV and in particular in default with his payments, or other circumstances become known which cast doubt on his creditworthiness.
15. Notification of defects and liability for defects
a.) Claims regarding the quality and/or quantity of the deliveries and products/services are, in the case of apparent defects, to be reported in writing without delay no later than within 24 hours after the handover/acceptance of the deliveries and products/services, and in the case of undetectable defects, within 24 hours after discovery of the defect.
b.) In the case of direct deliveries and commissions, DKV shall choose an appropriate form of supplementary performance while observing the principle of commensurability; this also applies for sales law. If the supplementary performance fails, whereby DKV is generally to be granted two attempts at supplementary performance, the customer can withdraw from the relevant individual contract or reduce the purchase price and/or remuneration, and in the case of a contract for work, also eliminate the defect himself in exchange for the reimbursement of his expenses.
c.) DKV shall not be liable for defects in the deliveries and products/services of the service partner if it is a third-party delivery. Notifications of defects do not justify a right of retention and do not affect the obligation to pay the invoice, unless defects are undisputed or have been established against DKV in a legally binding manner upon the invoice being due.
d.) If DKV is at fault for a defect, DKV shall provide damages or compensation for wasted efforts due to a defect under the legal prerequisites only within the limits defined in section 16 of these DKV-T&Cs.
a.) DKV’s liability for damages, regardless of the legal grounds, in particular due to impossibility, default, defective or incorrect delivery, contractual violation and unauthorised action is, for all liability from or in conjunction with this contract, provided that fault applies in each specific case, restricted according to the stipulations in this section 16. The same applies for liability from or in conjunction with individual contracts which the direct deliveries or commissions are based on. Liability from or in conjunction with individual contracts which the third-party deliveries are based on are determined according to the agreements which the customer enters into with the service partners.
b.) DKV shall be liable for material and financial damages incurred negligently by its institutions, legal representatives, employees, or other vicarious agents only when an essential contractual obligation is violated; however, the amount is limited to the foreseeable damages typical for the contract at the time the contract was entered into. Essential contractual obligations are those whose fulfilment characterise the contract and which the customer may rely upon, e.g. in the case of direct delivery the obligation to punctually deliver and (where applicable) hand over the work which is free of significant defects, including the LEOs, as well as obligations to provide advice, protection, and care, which serve to enable the customer to utilise the subject of the direct delivery as contractually intended or which serve to protect the life and limb of the customer’s personnel or protect his/their property from significant damage.
c.) Indirect damages and consequential damages which are the result of defects in the subject of the direct delivery and commission are only eligible for compensation provided that such damages are typically to be expected upon intended use of the subject of the direct delivery and commission.
d.) These exclusions and restrictions of liability apply to the same extent in favour of the institutions, legal representatives, employees, and other vicarious agents of DKV.
e.) The limitations in this section 16 do not apply to DKV’s liability in the case of/for (i) intentional or grossly negligent breaches of duty, (ii) in the case of the provision of a warranty for the properties and condition or existence of successful performance or the assumption of a procurement risk, (iii) in the case of default, provided that a fixed delivery date is agreed upon, (iv) injuries to life, body, and health, as well as (v) mandatory statutory liabilities, in particular the Product Liability Act.
f.) For claims for the reimbursement of expenses from the customer and in cases of breaches of duty in contractual negotiations, the preceding provisions a.) to e.) apply accordingly.
g.) The legal rules for burden of proof remain unaffected by the provisions of this section 16.
a.) Claims for defects related to direct deliveries and commissions including any damage claims and rights to reduce remuneration and rights of withdrawal based on them expire in one year, calculated from the delivery of the purchased item and/or acceptance of the work. Other contractual claims from the customer due to breaches of duty on the part of DKV and all non-contractual claims from the customer shall also expire in one year, beginning with the respective mandatory statutory start of the limitation period.
b.) In derogation to this, the statutory limitation periods apply (i) in cases of injury to life, body, or health, (ii) in the case of an intentional or grossly negligent breach of duty or fraudulent non-disclosure of a defect, (iii) for defect claims for an in rem right of a third party, due to which the release of a purchased item can be demanded, (iv) in the case of default, provided that a fixed delivery date was agreed upon, (v) in the case of claims from the Product Liability Act.
c.) The provisions of sections 196, 197, 445b of the Civil Code (BGB) as well as the rules for burden of proof remain unaffected by the aforementioned stipulations in section 17 a.) and b.).
18. Provision or augmentation of securities
a.) DKV’s entitlement to the provision of securities: DKV can, for all claims from the business relationship, require the provision of a security up to twice the CR granted, including for claims which arise in the future, are conditional, or not yet due (payment risk from current and future transactions from the use of the LEOs up to the return of the LEOs).
b) If the customer simultaneously has a business relationship with other companies in the DKV Group (which in particular includes REMOBIS REFUND SERVICE C.V., Varrolaan 51, NL-3584 BT Utrecht (Netherlands) und die LUNADIS GmbH + Co. KG, Balcke-Dürr-Allee 3, 40882 Ratingen) and DKV handles the collection of claims for them, DKV may also utilise securities provided for claims which were ceded to DKV by other companies in the DKV Group or whose cession is already certain upon utilisation. If the customer has applied for an increase in the CR or if DKV intends to grant the customer an increase in the CR, DKV is entitled to the provision or augmentation of the securities with regard to the debt resulting from the assumption of risk, but only upon the entry into force of the increased CR.
c.) Changes in risk: If, during the establishment of the business relationship with the customer, DKV initially chose not to require the provision or augmentation of securities, whether in whole or in part, DKV may also require the provision of securities up to twice the CR granted at a later date. However, the prerequisite for this is that circumstances occur or become known which justify a stricter risk assessment for the claims against the customer. This may in particular be the case when the economic circumstances of the customer have changed for the worse or threaten to do so, or the existing securities decrease in value or threaten to do so. DKV’s entitlement to receive securities does not apply when it is explicitly agreed upon that the customer does not have to or only needs to provide certain specified securities. The customer may require the securities to be reduced when and to the extent the CR granted has been reduced.
d.) Deadlines for the provision or augmentation of securities DKV shall grant the customer a reasonable deadline for the provision or augmentation of securities. If DKV intends to exercise its right to termination without notice pursuant to section 13 a.) (2) or prohibition of usage and blocking pursuant to section 12 b.) (3) of these DKV-T&Cs in the case where the customer does not his fulfil his duty to provide or augment securities within the deadline, DKV shall notify him of this in advance.
e.) Type of securities: DKV shall be entitled to require the provision of the security in the form of a cash deposit. Interest will be paid on the cash deposit. Unless other agreements are made, DKV shall be entitled to determine the interest rate according to reasonable discretion and taking into account the usual bank interest rates for savings accounts. The interest increases the security. Instead of cash deposits, the customer is also at liberty to provide unconditional, indefinite sureties or guarantees from banks in the amount of the security. However, the prerequisite is that the sponsor or guarantor waives the option of exoneration via escrow and has pledged to pay upon the first request.
f.) Exploitation and return/repayment of securities: DKV shall be entitled to exploit the securities provided by the customer or third parties as well as to transfer or sell outstanding claims against the customer to third parties for collection as soon as the customer is in default with the payment of an invoice. The customer’s right to have a provided security returned/repaid shall only be valid after the return of all LEOs and the payment of all claims from the business relationship. Furthermore, DKV is also entitled to withhold the securities for deliveries and products/services that have not yet been invoiced for a reasonable period, even after termination of this contract — generally for 3 months.
19. Information; customer’s obligation to notify
a.) DKV is entitled to obtain information from credit agencies and banks.
b.) The customer shall undertake to provide DKV with written notification without delay in the case of a change in the company owner (the owner of his company), the leaving or joining of partners, the leaving or joining of CEOs, a change in his bank details, the legal form of his company, changes in the address or the telecommunications connections and/or the abandoning of business operations (at the same time providing information on how to reach the owner and CEO in the future).
c.) In cases where the usage authorization agreed upon between the customer and DKV for a particular LEO is for vehicle-specific LEOs, changes in the number plate or vehicle are to be reported to DKV without delay.
d.) Provision of the customer’s value-added tax identification number: Customers domiciled in the EU are obliged to inform DKV of all value-added tax identification numbers as well as any changes without delay and without needing to be requested to do so. If the customer domiciled in the EU does not yet have a value-added tax identification number, he shall undertake to apply for one in the state he is domiciled and to inform DKV about the application as well as the final value-added tax identification number.
e.) Information about the entrepreneurial status of customers domiciled in third countries: Customers domiciled in a third country shall undertake to provide proof of their entrepreneurial status via a certificate from their tax authority (certificate of entrepreneurial status) or similar and to provide their valid local tax number and/or a valid number that is equivalent to a value added tax identification number. Furthermore, the customers shall undertake to provide all value added tax identification numbers assigned to them as a result of value added tax registrations in EU states. If any changes occur in the value added tax identification numbers, DKV is to be informed of them without delay.
Part B PROTECTED CUSTOMER AREA AND DKV E-INVOICING
20. Online access to DKV’s protected customer area
a.) Prerequisites for use: Upon request, DKV grants the customer the usage of the protected customer area of the DKV Online Service. DKV will transmit the login details to the customer via e-mail to the address provided by the customer. The terms of use on the website www.dkv-euroservice.com/bedingungen-und-richtlinien apply for use. DKV is entitled to unilaterally modify these terms of use for the future. In this respect, section 1 c.) Of the DKV-T&Cs applies accordingly. They are deemed to have been accepted by and agreed upon with the customer upon login to the secure customer area. Furthermore, the authentication instruments designated by DKV will need to be used in order to log in.
b.) Scope of usage: DKV is entitled to expand or restrict the scope of usage without this constituting grounds for a claim to a certain scope of usage.
c.) Fees: For individual products/services within the framework of the protected customer area, DKV is entitled to charge fees according to the respective prevailing list of service fees (section 9 (b)) or according to an individual agreement.
d.) Liability: DKV provides no guarantee for the perfect functioning of the software, the correct calculation of data, individual functions connected to the scope of usage (e.g., ordering of LEOs, deregistration, blocking) or functions which are linked to the DKV Online System. DKV provides no guarantee for data which are transmitted and/or imported to a customer system. The provisions in section 16 remain unaffected.
e.) Customer’s duty of care: The customer is responsible for ensuring the confidentiality of his customer account and his authentication instrument, as well as for the restriction of access to his computer, and is to store the authentication instrument where it is protected against access by other persons and take all the necessary measures to ensure that his password for DKV’s protected customer area is kept secret and stored safely. He is to inform DKV without delay as soon as there exist indications that a third party has gained knowledge of the authentication instrument or unauthorised use has been made of the authentication instrument and/or such unauthorised usage is probable. For the usage of DKV’s protected customer area, the technical connection is only to be established via the access channels specified by DKV. The respective security information on the website of DKV’s protected customer area, in particular the measures for the protection of the hardware and software used (customer’s system) must be observed by the customer at all times.
a.) E-invoicing: To participate in e-invoicing, the customer is to submit a written application to DKV and provide an e-mail address. E-invoicing is the electronic provision of invoices for deliveries and products/services as defined in Part A of the DKV-T&Cs to the customer via the sending or download and saving of information, which is made possible via the DKV Online Service.
b.) Paper invoices: By participating in e-invoicing, the customer accepts that this will replace his conventional paper invoices. This applies to the invoices which are sent to the specified billing address, as well as for the specified address for invoice copies. If e-invoicing is not permitted in certain countries pursuant to regulations/laws on value-added tax, DKV shall merely send or make available an invoice copy electronically and send the original invoice to the customer by post.
c.) Electronic invoice: The electronic original invoice will either be sent to the customer via e-mail or be available to the customer for one-time download in the protected customer area for a period of 12 months. Invoice copies can be downloaded by the customer at any time within a period of 12 months in the protected customer area. The customer is personally responsible for saving the electronic original invoice in electronic form (PDF + certificate) and for the related purposes. The customer is personally responsible for compliance with relevant laws and regulations, such as for all statutory data archival requirements (e.g. archival of the electronic invoice in accordance with prevailing laws), for the documentation, and for providing proof of how the data has been entered into the system and who is permitted access to the data. DKV shall not be liable for damages resulting from causes which are not within DKV’s scope of responsibility, such as line failures or network problems. The provisions in section 16 remain unaffected.
d.) Cancellation: The customer may discontinue his participation in e-invoicing at any time. To do so, the customer is to inform DKV of this in writing (e.g. via e-mail). Upon receipt of the request, DKV will switch to the sending of invoices on paper as soon as possible.
Part C INCLUSION OF SERVICE PARTNER GUIDELINES, TERMS OF USE, DEVICE-SPECIFIC INSTRUCTIONS, AND TOLL GUIDELINES
22. Inclusion of service partner guidelines, terms of use, and device-specific instructions
a.) Service partner guidelines: Guidelines from service partners which regulate the special vehicle-specific deliveries and/or products/services (including their usage) and/or LEOs shall, without prejudice to section 3 c.), become a component of the contract if DKV refers the customer to them within the context of the application for the product/service or the ordering of LEOs (e.g. also signaturelessly pursuant to section 3 d.).
b.) Special terms of use: Guidelines which regulate the usage of a product/service on-site (“special terms of use”) shall also become a component of the contract in reference to these products/services, but no later than upon their utilization, in the sense that the customer is also obliged towards DKV to observe and in particular comply with the resulting measures of conduct when the special terms of use have been put up at the place of provision of the product/service (e.g. the house rules of a multi-storey car park) or it is objectively recognizable for the customer in some other manner that the service partner only provides its product/service based on these special terms of use (e.g. within the framework of an app required to activate the product/service).
c.) Device-specific instructions: For device-specific (technical) instructions (e.g. installation instructions, operating instructions), the provisions for special terms apply (section 1 b.).
23. Consolidation of toll guidelines
DKV may also consolidate provisions for a variety of individual guidelines regarding tolls in a framework guideline (“framework guideline”). Inclusion shall then take place pursuant to section 22 a.) or an express agreement between the customer and DKV. The utilization of DKV’s product/service in relation to tolls is then based on the following rules and regulations:
1.) The relevant guidelines pursuant to section 3 c.) in conjunction with section 22. 2.) The framework guideline 3.) These DKV-T&Cs
Whereby in the case of contradictions, the provisions of the preceding rules and regulations precede those of the subsequent ones, unless the framework guideline explicitly decrees a different priority.
Part D FINAL PROVISIONS
DKV is, at any time and also without the customer’s consent, entitled to transfer the entire contract or individual rights and responsibilities resulting from it to a company affiliated with it as defined in section 15 of the Stock Corporations Act (AktG). DKV shall inform the customer of the transfer of the contract in good time and in writing.
a.) The laws of the Federal Republic of Germany shall apply. UN sales law (CISG) shall not apply. b.) DKV can, before or upon initiation of court proceedings against the customer in his home country, via a notification in text form or in the statement of claim, choose the foreign substantive law which applies at the corresponding statutory or agreed-upon place of jurisdiction of the customer (retrospective choice of law in favor of the right of domicile of the customer). This retrospective choice of law in favor of the right of domicile of the customer shall not apply if the customer objects to this choice within a month after he was able to gain knowledge of it. The customer shall be informed of this upon the exercising of the retrospective choice of law.
If parts of these DKV-T&Cs should be or become unenforceable, the enforceability of the remaining provisions shall remain unaffected.
The place of jurisdiction, also in international contexts, for all disputes arising from the business relationship — also after its termination — is Düsseldorf (Federal Republic of Germany). This place of jurisdiction is exclusive for all actions against DKV; for actions by DKV against the customer, it applies optionally alongside other statutory or agreed-upon places of jurisdiction (elective places of jurisdiction).
28. Confidentiality of individual contractual terms
The customer shall, for the duration of the contractual relationship with DKV, undertake to handle his individual contractual terms such as prices, service fees, and transaction data in strict confidence (“confidential information”), unless such information is publicly known or he is obliged to disclose it due to mandatory laws or mandatory official or court orders. The customer is not to disclose the confidential information to third parties or utilize it for commercial purposes without DKV’s approval. In the event a customer violates his confidentiality obligations, DKV reserves the right to claim any resulting damages in a court of law.
29. Processing of data and data protection
DKV processes the customer’s data, in particular data from the contractual relationship, exclusively within the framework of data protection provisions (e.g. the Federal Data Protection Act (BDSG) and/or the EU GDPR, in particular Art. 6). Provided this is permitted by data protection regulations, this also encompasses the processing and/or transmission of data to third parties (e.g. service partners) which act on behalf of DKV within the framework of prevailing provisions and corresponding guarantees. For more information on data protection, please visit www.dkv-euroservice.com/datenschutz.
30. Validity and interpretation for foreign customers
For business relationships with foreign customers, these General Terms and Conditions written in German shall also apply. The respective translations of them made available to foreign customers in the customer’s national language or in English serve to enable better understanding. In the case of a dispute regarding interpretation, the German text shall always take precedence.
Version: 08/2019
Schedule of Fees
Tag Rental Fees
Additional Fees
