GTB
§ 1 Scope and contract subject matter
These GTB apply to the download in digital file form of service information for the erWin repair and workshop system and for the supply of service information on CD-ROM, DVD or hard copy. The contractual partner is Bentley Motors Limited (“BENTLEY”).
BENTLEY grants the authority for the use of the service information to commercial organisations and private individuals solely in accordance with the terms set out below. This also applies where there are conflicting purchasing specifications on the part of the customer. BENTLEY does not recognise such terms and refutes them hereby. Deviations from these GTB are only valid with the written authority from BENTLEY. For contracts let before 01/04/2008, the previous GTB apply until the end of the subscription. Once the subscription has come to an end the customer may only order in accordance with these GTB.
Detailed information concerning the type and method of ordering and error correction input can be found under the heading ABOUT ERWIN via "erWin Info Tour" and "Step by Step".
Service information is regularly updated. Should you have any questions, complaints of other communications in connection with any orders from the erWin Web-shop, please forward them to: BENTLEY erWin Hotline, Pyms Lane, Crewe, Cheshire, CW1 3PL, England Phone:+ 44 (0) 1270 535332; email: HELPDESK@Bentley.co.uk
The contract languages are German and English.
§ 2 Ordering and contract letting
The contract takes effect, when, in response to the customer's order, Arvato SE sends an electronic order confirmation to the purchaser in the name of, and to the account of BENTLEY.
Alternatively the contract takes effect on receipt of prepayment, payment by credit card by the debiting of the declared credit card account by Bentley for the goods in question, or when the goods are dispatched.
The access period for the digital service information begins with the confirmation of the digital order, or at the latest when the data storage medium reaches the customer.
§ 3 Right of withdrawal of the end user
If the customer is an end user, he has the right to revoke his contractual statement within two weeks, without stating reasons, in written form (e.g. letter, fax, email), or, if the item has been delivered to him before the period has elapsed, by returning the item. The period begins once this instruction in written form has been received, but not before delivery of the goods to the consignee (for recurrent deliveries of similar goods, not before the receipt of the first part delivery) and also not before fulfilment of the obligation to provide information by BENTLEY in accordance with § 312c Section 2 BGB (German Federal Law Code) in relation to § 1 Section 1, 2 and 4 BGB InfoV as well as the obligations of BENTLEY in accordance with § 312e Section 1 Paragraph 1 BGB in relation to § 3 BGB InfoV. The timely dispatch of withdrawal notice, of the item is sufficient to comply with the withdrawal period. The withdrawal notice should be sent to: BENTLEY BENTLEY erWin Hotline, Pyms Lane, Crewe, Cheshire, CW1 3PL, England Phone:+ 44 (0) 1270 535332; email: HELPDESK@Bentley.co.uk
§ 3a Consequences of withdrawal for the end user
For a valid withdrawal, the material/payment provided by both sides is to be returned and any usage (e.g. interest) made good. If the customer is unable to return what was provided to BENTLEY, either completely, partially or only in a degraded condition, he must pay appropriate compensation for the value. This does not apply to items where the degradation of the item is entirely attributable to its testing that the customer may possibly carry out at a retail outlet. In addition the customer may not be liable to pay compensation where degradation occurs following correct usage of the item, where he makes use of the item not as his own property and avoids anything that may adversely affect its value. Items that can be packaged are to be returned at the risk of BENTLEY. The customer is responsible for the cost of return, if the goods supplied are in accordance with what was ordered and the value of the item to be returned does not exceed 40 Euros, or if, where the price is higher, the customer has not yet made payment or contractually agreed part payment. Otherwise the return is at no charge to the customer. Items that cannot be packaged will be collected from the customer. Reimbursement payment obligations must be fulfilled within 30 days. For the customer this period begins with the dispatch of the withdrawal notification or the item, for BENTLEY with its receipt.
§ 4 Usage rights and access period
For the digital service information for BENTLEY vehicles, such as repair guidance, vehicle-specific information, wiring diagrams, precise maintenance guidance, bodywork repair, exhaust emissions testing and and self-study programmes, the customer receives the authority, which enables access the information from erWin. He is also given the right to use all the information on an unspecified PC for a specified period (henceforward referred to as the "download period". Usage covers displaying the data on a PC and printing hard copy. A person ordering items dispatched by post has the right to install, save and use the current program on a PC for his own purposes.
Every erWin licence may be used in a particular repair shop by anyone and on any PC. For use in additional repair shops additional licences must be obtained in accordance with the current price list. Once the period of the contract has elapsed, the digital service information can no longer be displayed.
The download periods available are:
Under the rights granted to him, the person making the order is forbidden to make copies, or have copies made of the digital service information and items dispatched by post, of the files or parts thereof, or to allow access by third parties via communications networks. Excepted are copies made for security purposes for his own use.
§ 5 Exclusion of right of withdrawal for the end user
The right of withdrawal for online download of digital service information does not exist if the end user has begun the online download before the end of the withdrawal period.
Withdrawal from the order of CD-ROM, DVD or service information as a data package in hard copy as a postage item will not be accepted where the latter has been unsealed by the customer.
§ 6 Payment
Price information can be found under the heading "Flatrate". The prices quoted are in Euros and for end-user prices include VAT at the current statutory rate, otherwise they are liable to VAT at the current statutory rate. The prices are ex place of delivery and do not include packaging, insurance or dispatch.
Remuneration for access to digital service information in erWin is in accordance with current price information in the erWin webshop and is due on acknowledgement of the order. It is to be paid by credit card online or by pre-payment bank transfer. Payment for articles dispatched by post is due on submission of the invoice. Irrespective of any terms of the purchaser to the contrary, BENTLEY is entitled to elect to set payments against unsecured or old debts. If costs and interest have already arisen, BENTLEY is entitled to set the payment first against the costs, then against the interest and finally against the principal services listed in the paragraph above.
Payment has been properly made when BENTLEY has unrestricted access to the total amount. The purchaser is responsible for collection charges or other costs. Where prepayments are made, any charges arising (e.g. for foreign currency transfers) are the responsibility of the purchaser. Where there is a delay in payment, BENTLEY, is entitled to raise interest charges at 5% above the base rate on the delayed payment. The right of BENTLEY to claim compensation for any additional damages remains unaffected. The customer is only entitled to off-setting if this has been specifically agreed in writing by BENTLEY, the claim is undisputed or if the counter claims have been legally established.
§ 7 Dispatch, delivery and performance time
Delivery of goods is carried out solely by Arvato SE. For delivery of items by post, in addition to the stated price we make a flatrate postage charge for each order of €5.00 plus VAT for deliveries within Germany and to other EU countries and €10.00 plus VAT for deliveries to all other countries.
The dates and timings stated by BENTLEY are not binding unless specifically otherwise agreed in writing. BENTLEY is entitled to make part deliveries and part performances, provided the deliveries are made within the agreed time and the part deliveries / part performances are in the interests of the customer.
Access to erWin and the opportunity to use the digital service information on the selected data carrier cease when the download period ends, without the requirement for notice to be given. Once this access period has ended the digital service information can no longer be displayed.
§ 8 Transfer of risk and duty of inspection
Risk passes to the customer on receipt of the goods. If the customer is not the end user, the risk passes on handover of the goods to the person undertaking the transport, but at the latest when the item leaves the storage facility of BENTLEY or Arvato SE. If dispatch is not possible for which BENTLEY cannot be held to blame, the risk passes to the customer upon notification of readiness for dispatch, provided that the customer is not the end user.
Obviously damaged dispatches must be notified immediately to the forwarding company. If the purchaser breaches this duty of inspection, he is obliged to compensate BENTLEY for the damages arising.
Where the customer is the end user, he is obliged to inform BENTLEY in writing of any quality or legal defects within two weeks of becoming aware of the deficiencies. If the purchaser breaches this duty of inspection, he is obliged to compensate BENTLEY for the damages arising. For traders the duty of inspection remains as per § 377 HGB (German Commercial Law Code).
§ 9 Warranty and limitation period
Reclamations (warranty claims) may be submitted by e-mail or in writing to BENTLEY (for addresses and numbers see above). Reclamation returns must be sent to Arvato SE, Reinhard-Mohn-Straße 22, D-33333 Gütersloh. Where defects are present the customer has the legal right to claim.
Customer claims for quality deficiencies lapse after a period of one year, unless there is malicious concealment of deficiencies, or there is the acceptance of a quality guarantee by BENTLEY. If the customer is the end user quality claims lapse after a period of two years in accordance with the legal terms and conditions.
§ 10 Liability
BENTLEY is liable for life, injury and health risks and in general for all damages arising from intent, for gross negligence according to legal terms and conditions. Furthermore, BENTLEY is liable, irrespective of the legal basis, only for the culpable breach of fundamental contractual duties or where BENTLEY has maliciously deficiencies or has accepted a quality guarantee for the delivery item. Compensation for the breach of fundamental contractual obligations is, however, limited to contract a coherent and foreseeable damages. Liability according to Product Liability Law remains unaffected.
Liability, irrespective of culpability, of BENTLEY under rental law and similar usage conditions, one in particular, but not limited to software, for faults existing at the time of the letting of the contract is specifically excluded. BENTLEY accept no liability for deficiencies, damages or resultant complications arising from lack of compatibility, or interoperability of the software with the customer’s systems. It is the responsibility of the customer to scan the software and the data storage media with an up-to-date virus checker.
Statutory time limitations apply.
§ 11 Retention of title
All deliveries by BENTLEY take place under retention of title. Title only passes to the customer, when the obligations to BENTLEY in relation to the delivery have been fulfilled. Where the method of payment is by prepayment, the payment only fulfils the payment obligation once the complete amount is available to Bentley in its bank account. In the case of onward sale of the titled goods, the customer immediately relinquishes any claims arising against BENTLEY. The relinquished claim is for the insurance of goods sold by BENTLEY. If the goods are sold onwards along with other goods not belonging to BENTLEY, the relinquishment is only to the value of the proportion of BENTLEY goods according to the invoice from BENTLEY.
§ 12 Place of delivery, applicable law and place of jurisdiction
The place of delivery for all obligations of both parties to the contract is Wolfsburg. The law that applies to the contractual relationship and the legal relationships that exist in connection with it is exclusively that of the Federal Republic of Germany. The UN Convention for Contracts on the International Sale of Goods, as well as the application of other laws, contracts, etc., is excluded. The place of jurisdiction for all legal disputes arising from or in connection with the contract, including the question of its validity is Wolfsburg, provided that it concerns official traders, or persons who have no general place of jurisdiction within Germany or whose place of residence, or domicile is unknown and for whom another place of jurisdiction is obligatory due to compelling the legal prescription. BENTLEY is also entitled to make petition in the general place of jurisdiction of the customer.
Should the provisions of these terms and conditions, and the contract based upon them, be legally unworkable or impossible to carry out, either completely or in part, or that at a later date become legally unworkable or impossible to carry out, the validity of the remaining provisions of the contract, and the terms and conditions remain unaffected. The parties to the contract are obliged to replace the unworkable provision with one that will most nearly achieve the commercial outcome required.
§ 13 Changes to the GTB and services
BENTLEY reserves the right to change these GTB where such changes reasonably take account of the interests of BENTLEY and the customer. This is particularly the case, when the changes have no commercial disadvantage for the customer, e.g. changes to the registration process, changes to points of contact, changes or augmentation of the service information offer, or similar, as well as modification of the GTB to take account of changes in the law, changed or new services, functionalities or content. In addition, BENTLEY reserves the right to alter these GTB at any time. BENTLEY will inform the customer by e-mail or in writing of any such change. If, having received notification of the change by e-mail or in writing, the customer raises no objection within a period of six weeks, the change in question becomes a constituent part of the contract existing between the contractual partners. Provided that the customer raises an objection within the permitted period, both parties to the contract have the right to give notice of termination to this agreement with immediate effect.
BENTLEY reserves the right to update, change or adjust the functions of individual services. BENTLEY also reserves the right to completely revise individual services provided that this is legally admissible.
Dated 01/04/2008 all
§ 14 Resolution of disputes
Bentley is not willing or obliged to attend dispute settlement proceedings before a consumer arbitration board.„Online Dispute Resolution under Article 14 Abs. 1 ODR-VO: EU platform to resolve disputes out-of-court http://ec.europa.eu/consumers/odr/.“