Terms of use
FOR THE USE OF THE APARKADO APP
PREFACE
A) Aparkado UG (hereinafter “Aparkado“) has a smartphone application (hereinafter “Aparkado-App“), with which truck drivers (together “User“) via their smartphone on demand or (if desired) in real time including, but not limited to, (i) rest stops and car parks in their vicinity or near their next stop or their current location (ii) one Estimate to travel time and EntferAdaptation to the selected parking lot and the Estimated route to get there, (iii) Parking lots and rest areas based on given criterian and view the reviews of other users, (iv) view information about loading docks and collect them in the Aparkado app for other users to evaluate, and (v) 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 via various app stores. The download of the Aparkado app and the use of 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 referred to as the “Terms of Use“). The Terms of Use must be read carefully. They establish a binding contract between the user and Aparkado.
App Terms of Use
1) These Terms of Use apply between the User and Aparkado when using the Aparkado App (“”App Usage Agreement“). The app usage contract is concluded by downloading the Aparkado app.
2) In terms of time, these Terms apply for as long as the App Usage Agreement is in force. The App Usage Agreement 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 Aarkado (e-mail is sufficient). Aparkado may also terminate the contract at any time by notifying the User (e-mail is sufficient).
3) For competitions and similar promotions in which users can participate voluntarily, further regulations may apply. In this case, Aparkado will expressly refer to the other conditions.
1) Aparkado generally makes the Aparkado App available 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) Aparkado’s services include information and services for users that can be accessed in the Aparkado app.
3) Aparkado has the right to use subcontractors for the provision of services.
4) Aparkado cannot accept any liability for content written by other users and there is no proactive control as to whether this content (in particular ratings and feedback on the current load) is true and accurate. Likewise, it cannot be guaranteed thatthe parking spaces entered by Users in the Aarkado App are actually located at the registered location and are suitable and approved for parking by the User. However, Aparkado will make every effort to keep the user entries in bullet points, e.g. on the basis of the evaluation of satellite images and [•]. There is expressly no on-site inspection of the parking spaces entered by users.
1) No user account is required to use the Aparkado app. Within the Aparkado app, however, some functionalities are only offered to registered users. For this purpose, the user is asked after downloading and opening the Aparkado app for the first time 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 (user name and e-mail address) or register with his Facebook account or Google account data. Input errors can be corrected at any time using the appropriately marked buttons. The user can (voluntarily) add his real name, a profile picture and a cover photo to his profile.
2) Each user must have full legal capacity.
3) The user is expressly prohibited from passing on his access data to the user account to third parties.
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 “User Protected Content“) to use the protected content of Users 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 thereof. This right of use is limited to the period during which the content is available in the Aparkado app and has not been deleted by the driver or Aparkado.
Further development of the Aparkado app
1) Aparkado is continuously developing the Aparkado App with the aim of improving it (e.g. by providing new functionalities). During the duration of the App Usage Agreement, patches and updates to improve the Aparkado App may be made available for download on a regular basis. Obtaining patches and updates is usually free of charge for the user during the contract period. If new functionalities are introduced or existing functionalities are significantly improved, Aparkado may make the User’s access to these new functionalities dependent on a remuneration to be agreed in advance between the User and Aparkado.
2) Aparkado is entitled to subsequently restrict the existing functionalities of the Aparkado App, provided that there is a good reason for this and the User’s interest in retaining the original range of functions does not prevail. A valid reason exists in particular if
a) the compatibility of the Aparkado App with the applicable law is established by changing the range of functions, in particular if the legal situation has changed;
b) the change is prompted by a court decision or an administrative order;
c) the modification is necessary to address security gaps or risks to Aparkado’s technical infrastructure; or
d) the change is of a purely technical nature and has no appreciable impact on the user.
3) Noticeable changes to the range of functions of the Aparkado App will be announced by Aparkado to the User with reasonable notice.
The User is granted a simple, non-sublicensable and non-transferable right to use the Aparkado App in the range of functions activated for him, provided that he complies with these Terms of Use. The user is not entitled to any other rights to the Aparkado app.
1) When using the Aarkado app, the Aarkado Code of Conduct must be observed. This provides regulations for the fair and non-discriminatory use of the Aparkado app with regard to images uploaded by users, written reviews and profile information. The Aparkado Code of Conduct can be viewed [here].
2) In addition be valid for the Aparkado app the following restrictions on use (“Restrictions on use“):
a) each user may only create one account;
b) the Aparkado App or access to it may not be made available 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;
c) it is prohibited to reproduce, sell, transfer the Aarkado App to third parties for a limited period of time (whether for a fee or free of charge), distribute, rent, lease or lend or otherwise make it available;
d) you may not copy or create derivative works of the Aparkado App and any parts, features, functions, or user interfaces thereof;
e) it is prohibited to disassemble, observe, investigate, test or disassemble the Aparkado App in any other way (so-called “reverse engineering”) with the intention of gaining knowledge of the source code or other source files, unless such actions are permitted by law;
f) it is prohibited to make changes or modifications to the Aparkado App;
g) except to the extent permitted by applicable law, you may not disassemble or decompile the Aparkado App;
h) it is prohibited to use the Aparkado App in an unlawful manner;
i) it is prohibited to write review posts that (i) violate applicable laws, (ii) are offensive, discriminatory or harassing, (iii) contain hate speech or the rights of third parties (for which there is no right to use), (iv) contain personal data of other persons or otherwise identify other persons, in particular by publishing photographs, or (v) deliberately contain false facts or (vi) advertising.
j) Aparkado points out that the Aparkado app may not be operated by the user while driving (see in particular § 23 para. 1a StVO).
Violations of the aforementioned restrictions on use constitute unauthorized use of the Aparkado app (“Unauthorized use“).
3) In the event of unauthorized use that threatens the availability, security, and/or integrity of the Aarkado App, Aparkado is entitled to temporarily disable the Aparkado App. In the case of all other unauthorized uses, Aparkado is entitled to take reasonable measures to prevent further violations of the restrictions on use (e.g., depending on the severity of the violation: request to cease and desist, temporary deactivation of user access).
Aparkado is entitled, in the exercise of its equitable discretion, to terminate individual content uploaded by Users to the Aparkado App or the User Account as such in the event of a breach by the User of the Usage Restrictions.§ 7) or a suspicion of unauthorised use based on factual indications (e.g. in terms of time and/or content) or to block or delete it completely. When assessing a violation and selecting the measures to be taken, Aparkado takes into account the rights, legal interests and interests of the affected user. Aparkado shall inform the User immediately of the measure taken pursuant to sentence 1.
References to other third-party services/websites
Insofar as the Aarkado App refers to other services or the websites of third parties (“Third-Party Providers“) or redirects the User to them, 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 in this respect. The use of the content provided by third parties is at your own risk.
Aparkado undertakes to comply with the applicable data protection regulations. Aparkado’s privacy policy can be viewed here.
1) Aparkado is entitled to amend these Terms of Use retrospectively, provided that the changes do not seriously impair the contractual structure. Aparkado will inform the user of the change by e-mail. If the User does not object to the change within a period of six (6) weeks from the date of the information, the changes shall be deemed to have been accepted. Aparkado will inform the User of the intended meaning of silence in response to the notification of the change. In particular, Aparkado is entitled to amend the contract if the change is necessary in order to:
a) to make the contract compatible with the applicable law, in particular if the legal situation has changed,
b) implement a court decision or an administrative order.
2) If the user objects to a change vis-à-vis Aparkado (e-mail is sufficient) by the expiry of the period specified in paragraph (1) (access to Aparkado), both the user and Aparkado have an extraordinary right of termination.
Liability and warranty for product defects
1) Aparkado’s strict liability for damages (§ 536a BGB) for defects of a lease nature existing at the time of conclusion of the contract is excluded.
2) Aparkado shall be liable without limitation in accordance with the statutory provisions for injury to life, limb and health as well as in the event of intent or gross negligence, for guarantees assumed and in accordance with the provisions of the Product Liability Act.
3) In the event of a slightly negligent breach of an obligation that is essential for the performance of the contract, the breach of which would therefore jeopardise the purpose of the contract (cardinal obligation), Aparkado’s liability is limited in amount to the damage that is foreseeable and typical according to the nature of the transaction in question.
4) Except in the cases referred to in paragraphs (1) to (3), Aparkado shall not be liable. The above provisions also apply to the benefit of Aparkado’s vicarious agents.
5) The statute of limitations for all claims governed by this section shall be twelve (12) months commencing from the date on which the respective claim arose.
6) For the Aparkado app, the statutory warranty rights existing for digital products in accordance with §§ 327 et seq. BGB apply to consumer contracts.
7) The information in the Aparkado app on routing (esp. Distance and travel time to the parking or rest areas selected by the user) and the display of the rough route are based exclusively on estimates and expressly do not constitute binding data or a navigation service. They are only intended to give the user a rough estimate in order to be able to plan the journey.Aparkado cannot guarantee the stated travel time or distance. Likewise, it cannot be guaranteed that the user will comply with his driving times by using the Aparkado app.
Except as otherwise expressly provided in this Agreement, neither the User nor Aparkado shall be entitled to (i) set off their claims against claims of the other under this Agreement or (ii) refuse to perform any obligation under this Agreement by asserting a right of retention, unless the rights or claims asserted by a right of set-off or retention are undisputed or legally established.
Written form clause
Changes and additions to this contract must be made in writing in order to be effective.
Place of jurisdiction and applicable law
These Terms of Use 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.
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. Statutory law takes the place of non-included or invalid terms and conditions of use (Section 306 (2) of the German Civil Code). In all other respects, the User and Aparkado shall make an effective provision in place of the void or invalid provision, which comes as close as possible to it economically, unless a supplementary interpretation of the contract takes precedence or is possible.
This text was automatically translated from German.