TERMS OF USE FOR THE USE OF THE LKW.APP

PRELIMINARY REMARKS

(A) Aparkado UG (hereinafter “Aparkado”) has developed a smartphone application (hereinafter “Aparkado App”), with which truck drivers and male and female truck drivers (collectively “Users”) can, via their smartphone, among other things. (i) can have rest stops and parking lots suggested near them or near their next stop, (ii) can rate the parking lots and rest stops and view other users’ ratings, (iii) can view information about loading docks and enter it into the Aparkado App for other users to rate, and (iv) can take advantage of partner offers and benefits along the route (collectively, “Functionalities”). Some Functionalities can only be used by Users with a User Account.

(B) The Aparkado App can be downloaded to a User’s smartphone through various app stores. Downloading the Aparkado app and using the functionalities is free of charge.

(C) By downloading the Aparkado app, users agree to these terms of use for the use of the Aparkado app (hereinafter “Terms of Use”). The terms of use must be read carefully. They constitute a binding contract between the user and Aparkado.

§ 1 App Terms of Use

(1) These terms of use apply between the user and Aparkado when using the Aparkado app (“app usage contract”). The app usage contract comes into effect through the download of the Aparkado app.

(2) In terms of time, these terms and conditions apply as long as the app usage contract exists. The app usage contract is concluded for an indefinite period of time. It can be terminated by the user at any time by deleting the Aparkado app or – if a user account has been opened – by deleting the user account or notifying Aparkado (an e-mail will suffice). Aparkado may also terminate the contract at any time by notifying the user (e-mail is sufficient).

§ 2 Services provided by Aparkado

(1) Aparkado generally provides the Aparkado app to the user free of charge for download and use. The Aparkado app requires an internet connection for some of its functionalities. The user is responsible for this, as well as for the costs incurred for the use of the Internet connection.

(2) The services of Aparkado include information and services for the truck driver and truck drivers, which can be accessed in the Aparkado app.

(3) Aparkado has the right to use subcontractors for the provision of services.

(4) Aparkado cannot assume any liability for authored content from other users and there is no proactive control whether this content (in particular ratings, registered parking spaces and feedback on current utilization) is true and accurate.

§ 3 Provision of the Aparkado app

(1) No user account is required to use the Aparkado app. However, within the Aparkado app, some functionalities are only offered to registered users. For this purpose, after downloading and opening the Aparkado app for the first time, the user will be asked whether he or she would like to create a user account. If this is the case, he must go through a short registration process. As part of the registration process, the user must register by providing user data (username and email address) or register with his Facebook account or Google account data Input errors can be corrected at any time using the buttons marked accordingly.

(2) Every user must have full legal capacity.

(3) The user is expressly forbidden to pass on his access data to the user account to third parties.

§ 4 Rights to user content

The user grants Aparkado a free simple, transferable, sublicensable and worldwide right of use for all texts entered in the Aparkado app, uploaded photographs and all other content protected by intellectual property rights (hereinafter collectively referred to as “protected user content”) to use the protected user content in the Aparkado app. This includes, in particular, the right to publish the content, display it in the Aparkado app for other users, translate it and create derivative works from it. This right of use is limited to the period in which the content is available in the Aparkado app and has not been deleted by the driver or Aparkado.

§ 5 Further development of the Aparkado app

(1) Aparkado continuously develops the Aparkado app with the aim of improving it (e.g. by providing new functionalities). During the term of the app usage contract, patches and updates to improve the Aparkado app may be made available for download on a regular basis. The purchase of patches and updates is generally free of charge for the user during the term of the contract. If new functionalities are introduced or existing functionalities are significantly improved, Aparkado can make the user’s access to these new functionalities dependent on a fee to be agreed upon in advance between the user and Aparkado.

(2) Aparkado is entitled to subsequently restrict the existing functionalities of the Aparkado app if there is a valid reason for doing so and the user’s interest in maintaining the original scope of functions does not outweigh this. A valid reason exists in particular if

1. a) the change in the scope of functions makes the Aparkado app compatible with applicable law, in particular if the legal situation has changed;
2. b) the change is prompted by a court decision or an official order;
3. c) the change is necessary to close security gaps or risks for the technical infrastructure of Aparkado; or
4. d) the change is of a purely technical nature and has no noticeable effects for the user.

(3) Noticeable changes to the functional scope of the Aparkado app will be announced by Aparkado to the user with an appropriate lead time.

§ 6 Right of use

The user receives a simple, non-sublicensable and non-transferable right to use the Aparkado app in the functional scope activated for him/her, provided that he/she complies with these terms of use. The user is not entitled to any further rights to the Aparkado app.

§ 7 Restrictions of use

(1) When using the Aparkado app, the following usage restrictions (“Usage Restrictions”) apply:

1. a) each user may only create one account;
2. b) the Aparkado app or access to it may not be provided to third parties (in any form whatsoever); in particular, it is prohibited to offer the Aparkado app to third parties or to make the Aparkado app accessible to them;
3. c) it is prohibited to reproduce the Aparkado app, sell it, make it available to third parties for a limited period of time (whether for a fee or free of charge), distribute it, rent it, lease it or lend it or make it available in any other way;
4. d) it is prohibited to copy the Aparkado app and its parts, features, functions or user interfaces or to develop derivative works from it;
5. e) it is prohibited to reverse engineer, observe, examine, test, or otherwise disassemble the Aparkado app with the intent of obtaining knowledge of the source code or other source files, unless such actions are permitted by law;
6. f) it is prohibited to make changes or modifications to the Aparkado app;
7. g) except to the extent permitted by applicable laws, it is prohibited to disassemble or decompile the Aparkado App;
8. h) it is prohibited to use the Aparkado App in an unlawful manner;
9. i) it is prohibited to write review posts that (i) violate applicable laws, (ii) are offensive or harassing, (iii) contain hate speech or rights of third parties (for which there is no right of use), (iv) contain personal data of other persons or otherwise make other persons identifiable, in particular by publishing photographs, or (v) contain deliberately false facts, or (vi) contain advertising.

Violations of the aforementioned restrictions on use constitute unauthorized use of the Aparkado App (“Unauthorized Use”).

(2) In the event of any unauthorized use that threatens the availability, security and/or integrity of the Aparkado app, Aparkado is entitled to temporarily disable the Aparkado app. In the case of all other unauthorized use, Aparkado is entitled to take appropriate measures to prevent further violations of the usage restrictions (e.g. depending on the severity of the violation: request to cease and desist, temporary deactivation of user access).

§ 8 Blocking of users

Aparkado is entitled, in the exercise of reasonable discretion, to restrict (e.g. in terms of time and/or content) or completely block or delete individual content uploaded by users in the Aparkado app or the user account as such in the event of a violation by the user of the usage restrictions (§ 7) or a suspicion of unauthorized use based on actual evidence. When assessing a violation and selecting the measures to be taken, Aparkado respects the rights, legal interests and interests of the affected user. Aparkado will inform the user immediately about the measure taken according to sentence 1.

§ 9 Links to other services/websites of third parties

Insofar as the Aparkado app refers to other services or the websites of third parties (“third party providers”) or directs the user there, Aparkado has no influence on the scope of services provided and/or to be provided there and is not a party to the contract concluded between the user and the third party provider, which is why no liability can be assumed for this in this respect. The use of content provided by third parties is at the user’s own risk.

§ 10 Data protection

Aparkado undertakes to comply with the applicable data protection regulations. The data protection information of Aparkado can be viewed here.

§ 11 Changes to the contract

(1) Aparkado is entitled to subsequently amend these user terms and conditions, provided that the changes do not seriously affect the contractual structure. Aparkado will inform the user about the change by e-mail. If the user does not object to the change within a period of six (6) weeks after the information, the changes are considered accepted. Aparkado will inform the user about the intended meaning of a silence on the change notification. In particular, Aparkado is entitled to amend the contract if the amendment is necessary in order to

1. a) make the contract compatible with applicable law, especially if the legal situation has changed,
2. b) implement a court decision or an official order.

(2) If the user objects to a change to Aparkado (email is sufficient) until the expiry of the deadline specified in paragraph (1) (receipt by Aparkado), both the user and Aparkado are entitled to an extraordinary right of termination.

§ 12 Liability and warranty for product defects

(1) Aparkado’s strict liability for damages (§ 536a BGB) for defects of a rental nature existing at the conclusion of the contract is excluded.

(2) Aparkado is liable without limitation according to the statutory provisions for injury to life, limb and health, as well as for intent or gross negligence, for guarantees assumed and according to the provisions of the Product Liability Act.

(3) In the event of a slightly negligent breach of an obligation that is essential for the fulfillment of the contract, the breach of which would therefore jeopardize the purpose of the contract (cardinal obligation), the liability of Aparkado is limited in amount to the damage that is foreseeable and typical for the type of business in question.

(4) Except in the cases mentioned in paragraphs (1) to (3), Aparkado is not liable. The above provisions also apply in favor of Aparkado’s vicarious agents.

(5) The limitation period for all claims regulated in this clause is twelve (12) months, starting from the time when the respective claim arose.

(6) For the Aparkado app, the statutory warranty rights existing for digital products according to §§ 327 ff BGB (German Civil Code) apply for consumer contracts.

§ 13 Prohibition of set-off

Unless otherwise expressly stipulated in this contract, neither the user nor Aparkado is entitled (i) to offset their claims against claims of the other under this contract or (ii) to refuse to fulfill an obligation under this contract by asserting a right of retention, unless the rights or claims asserting a right of set-off or retention are undisputed or have been legally established.

§ 14 Written form clause

Amendments and supplements to this contract must be made in writing to be effective.

§ 15 Place of jurisdiction and applicable law

These user conditions and its interpretation are subject to German substantive law. If the user is an entrepreneur (§ 14 BGB), the place of jurisdiction for all disputes arising from and in connection with this contract, including its effectiveness, is in this Cologne. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

§ 16 Severability clause

Should individual provisions of this contract be or become void or ineffective in whole or in part, this shall not affect the validity of the remaining provisions. The legal law (§ 306 Abs. 2 BGB) takes the place of not included or ineffective user conditions. In all other cases, the user and Aparkado will replace the void or invalid provision with a valid provision that comes as close as possible to the economic purpose of the void or invalid provision, unless a supplementary interpretation of the contract takes precedence or is possible.

(Note: This translation was created by machine.)