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General Terms and Conditions of PACETEQ GmbH

for the Licensing and Use of Application Software

Date: 20/12/2023

1. Contractual Partners, Scope of Application

The present General Terms and Conditions of PACETEQ GmbH (hereinafter referred to as "GTC") apply to the business relations between PACETEQ GmbH, Birkunger Straße 20, 37327 Leinefelde-Worbis (hereinafter "PACETEQ", "we", "our", or "us") and the customer (hereinafter referred to individually or together with PACETEQ as "Contracting Parties"), which concern the provision of application software in the field of motorsports and other professional sporting activities and environments (hereinafter referred to as "Software").

  • The GTC shall exclusively apply. Differing or opposing terms and conditions are only applicable with the express consent of PACETEQ. Differing terms and conditions are particularly not incorporated into contracts with PACETEQ by the customer merely referring to them and sending them to PACETEQ, or by PACETEQ not expressly objecting to the validity of the differing terms and conditions, or by PACETEQ providing a service without reservation.
  • PACETEQ provides services in the scope of these GTC exclusively to entrepreneurs and legal entities under public law. A contract with consumers is excluded. Entrepreneurs are natural or legal persons or legal partnerships who act in the exercise of their independent professional or commercial activity when concluding a legal transaction.
  • These GTC, together with the conditions agreed upon at and after the conclusion of the contract, form the agreement between the Contracting Parties. Insofar as they differ, individual agreements of the Contracting Parties, e.g., in offers or other documents, take precedence over these GTC.

2. Subject Matter of the Contract

PACETEQ provides the customer with access to the software. The access to the software is limited in time to the duration of the contract; there is no sale of the software. The customer may use the software in accordance with Sections 6 and 7 of these GTC or have it used by third parties.

  • PACETEQ is entitled to use the services of third parties at any time and without prior coordination with the customer to fulfill the services owed to the customer, at its own discretion.
  • PACETEQ is entitled to perform services for third parties at any time – including in parallel with services rendered to the customer.

3. Scope of Services, Interface, Data Backup

  • The software provides the capability to display, evaluate, and store data originating from various data sources (e.g., the customer's database or access to external data sources via interfaces), as well as the capability for the customer to store data. The specific scope of services, characteristics, intended use, and operational conditions of the software are detailed in the product descriptions attached at the time of contract conclusion and in further agreements between the Contracting Parties.
  • PACETEQ is not responsible for data imported via external interfaces and only provides the technical infrastructure (especially interfaces to the customer's databases or external data sources) and processes for processing, evaluating, and storing the data. The customer is solely responsible for the legality of the data, particularly for compliance with applicable data protection norms, as well as for the content accuracy, quality, currency, and completeness of the data. PACETEQ does not verify the imported data.
  • PACETEQ maintains data security measures according to current technological standards. Beyond the storage of data, the customer is also responsible for further data security measures (e.g., through backups), for which PACETEQ provides the necessary technical capabilities. Not included in the contractual scope of services are individual data security measures tailored to the customer and archival services and obligations by PACETEQ, especially of a commercial or tax-related nature. Additional measures for data security and protection by PACETEQ are to be separately agreed upon and compensated.
  • PACETEQ strives to keep the software fully functional and reliable. However, continuous availability and functionality of the software cannot be guaranteed. The software may be temporarily unavailable, in particular due to external circumstances such as technical disruptions or failures not the fault of PACETEQ, or due to maintenance work.
  • PACETEQ is not obligated to ensure that the software meets the individual requirements of the customer. However, the customer has the option to commission PACETEQ for individual adaptations of the software to meet specific requirements, as further regulated in Section 4.

4. Customization Services by PACETEQ

PACETEQ provides additional services based on separate agreements, in particular the customization of the software to the customer's specifications, including adaptation to specific hardware or software environments, rectification of malfunctions caused by improper use, acts of God, third-party interventions, or other influences not caused by PACETEQ, as well as consulting services.

  • The work results arising from the customization services may be used by the customer within the scope of Section 5.

5. Conclusion of Contract, Provision, Registration

  • The information about the software on the PACETEQ website does not constitute a legally binding offer to the customer, but should be understood as an invitation to the customer to contact PACETEQ for a service offer.
  • The conclusion of the contract takes place within the framework of individual communication between the Contracting Parties. The basis for the conclusion of the contract is the offer from PACETEQ along with these GTC. Generally, PACETEQ accepts a binding offer from the customer by providing the license key.
  • The customer's registration for the use of the software is carried out by transmitting the customer's email address and name. The customer will also be prompted to assign a password and possibly other characteristics required for multi-factor authentication for subsequent logins. The customer will then receive a confirmation of the registration via email to the previously provided email address.
  • Accounts are not transferable.
  • Insofar as the software is offered via third-party online platforms, this also does not constitute a legally binding offer, and the contract is only concluded upon acceptance by PACETEQ (usually by sending the license key). Contractual provisions of third-party platforms have no effect against PACETEQ.

6. Use and Access to the Software

The customer is granted a simple, geographically unrestricted, non-sublicensable, non-transferable right to use the software, including any adaptations according to Section 4, limited in time to the duration of the contract, and subject to the following conditions:

  • Use of the software is via an access that is available with a name, a password, and possibly additional security features (multi-factor authentication) after prior registration according to Section 5(3). Access is typically available through a web browser or a suitable application over the internet or – at the customer's choice – through an instance stored locally on the customer's computer.
  • The customer is authorized to use the software themselves or through persons employed by them, and to allow access to the customer's contractual partners ("users") to use the software. The contractual partner of PACETEQ remains exclusively the customer. The customer is liable to PACETEQ for the behaviour and risk area of the users.
  • The customer is only entitled to connect external data sources via the software's interfaces to use the software according to its intended purpose.
  • Other acts of use are excluded, insofar as they are not absolutely necessary to use the software according to the above provisions.

7. Terms of Use for the Software

  • The customer is obliged to inform users about the rights and obligations arising from the contract, in particular from this Section 7, and to commit them to comply with these.
  • The customer is obliged to protect the software, especially the license key and access data, from access by unauthorized third parties using suitable measures and to inform PACETEQ immediately in the event of unauthorized access.
  • The customer is responsible for providing the necessary transmission paths (internet connection), software, and hardware for the use of the software at their own expense.
  • The customer is obliged to take suitable measures to protect the hardware and software used to operate the software (such as virus scanners and firewalls) and to update these regularly.
  • The customer guarantees that access to the software will not be used for the following prohibited purposes:
    • Use of copies or extracts of the software without the necessary copyright or user rights;
    • The use of data mining, robots, or other data collection and extraction programs;
    • Conducting reverse engineering, decompilation, disassembly, or reproducing, copying, or duplicating the access without PACETEQ's consent.
  • If there are concrete indications that the customer culpably violates legal regulations, third-party rights, or this contract, PACETEQ is entitled to take one or more of the following measures:
    • Warning;
    • Delay or refusal of registration or activation of the account;
    • Restriction of the use of the software;
    • Exclusion – temporarily or permanently – from the use of the software (blocking).

8. Prices, Compensation, and Payment Terms

  • The customer shall pay PACETEQ the license fee agreed upon at the time of contract conclusion.
  • Services that go beyond the use of the software, such as additional license packages or the development of customer-specific solutions or modifications, require a separate agreement regarding compensation. If no corresponding compensation is agreed upon, PACETEQ is entitled to compensation at the prices valid at the time the services are provided.
  • All amounts or prices are net amounts plus statutory levies.
  • Invoices from PACETEQ are due without deductions no later than 14 days from the invoice date.
  • Claims against PACETEQ may only be assigned to third parties with the consent of PACETEQ. § 354a HGB (German Commercial Code) remains unaffected. A set-off against a payment claim from PACETEQ is only permissible with undisputed or legally established claims.
  • Default is determined according to the statutory provisions. If the customer is in default with due payment obligations, all claims incurred become due immediately. PACETEQ reserves the right to assert further damages caused by delay, and its claim to commercial maturity interest (§ 353 HGB) remains unaffected.

9. Third Party Rights

  • The Contracting Parties shall promptly notify each other in text form or in writing if claims are made against them for infringement of protective rights or other rights. The Contracting Party responsible for the infringement shall indemnify the other party in relation to such third-party claims.
  • The customer shall indemnify PACETEQ against users and third parties who assert a violation of protective rights or other rights against PACETEQ, to the extent that the customer is responsible for the infringement.
  • The obligation to indemnify does not apply to PACETEQ if the legal violation is based on data introduced into the software from external data sources or on the contractually improper use of the software.
  • If claims have been made against the customer or are expected, PACETEQ may change or replace the software at its own expense to an extent that is reasonable for the customer. If this is not possible with reasonable effort, each Contracting Party may terminate the contract without notice, insofar as the software violates the protective rights of third parties.

10. Warranty, Limitation Period

  • PACETEQ warrants its services in accordance with statutory provisions, subject to the following deviations.
  • In the event of a warranty claim, PACETEQ is initially entitled to rectify the situation at its own discretion – either by remedying the defect ("rectification") or by providing a replacement. As part of a replacement delivery, the customer may need to adopt a new version of the software, unless this leads to unreasonable impairments for the customer. PACETEQ also fulfills its obligation to rectify through the execution of updates.
  • The warranty for defects does not apply:
    • For errors that have predominantly arisen due to the use of the software in violation of the terms of this contract;
    • For errors based on the use of the software in a software environment that does not meet the requirements specified by PACETEQ;
    • For errors based on changes made to the software by the customer or third parties commissioned by them;
    • In the event of impediments to performance according to Section 11.

11. Impediments to Performance

  • Delays in performance or failures due to force majeure, as well as due to circumstances within the customer's influence and risk area, entitle PACETEQ to postpone the provision of the affected services for the duration of the impediment plus a reasonable startup time. Force majeure is any event outside the control of PACETEQ that wholly or partly prevents it from fulfilling its obligations, including fire damage, floods, strikes, lawful lockouts, unexpected pandemics or epidemics, as well as operational disruptions or government orders not caused by PACETEQ.
  • In the event of impediments, PACETEQ is obliged first to take legally and factually possible as well as economically reasonable measures to preserve or restore its performance obligations.
  • A party is required to promptly inform the other party about the cause of an impediment and the expected duration thereof.

12. Confidentiality; Use of Customer Name as Reference

  • The obligations of the Contracting Parties to maintain confidentiality are governed by statutory provisions. In particular, the Contracting Parties commit to keeping confidential all content, information, data, and matters that are introduced or become known during the business relationship, or that are marked as "secret" or "confidential." The existence and content of the agreements between the Contracting Parties are also confidential.
  • A Contracting Party will immediately inform the other party if it, its organs, employees, representatives, or advisors become aware that confidential information has been disclosed in violation of this confidentiality agreement.
  • The confidentiality obligations remain effective after the termination of the business relationship, regardless of the reason for termination.
  • Notwithstanding the foregoing, with the customer's consent, PACETEQ is allowed to represent the completed order as part of PACETEQ's portfolio, to link to it, or to use excerpts thereof for PACETEQ's self-promotion – even after the end of the business relationship – free of charge. Mentioning the customer's company and the services provided as a reference, particularly on PACETEQ's websites and/or social network pages, is permitted until the revocation of consent.

13. Liability

PACETEQ is liable without limitation for:

  • Deceit, intent, or gross negligence;
  • Any guarantee expressly assumed by PACETEQ;
  • Damages resulting from injury to life, body, or health;
  • Claims in accordance with the provisions of the Product Liability Act;
  • The breach of a fundamental contractual obligation, the fulfilment of which is essential for the proper execution of this contract and upon which the customer regularly relies and may rely ("material contractual obligation"). Liability for breach of material contractual obligations is limited in total to the compensation due in a contract year for all damage events occurring in the same contract year.

Otherwise, PACETEQ's liability is excluded. The aforementioned liability rules apply accordingly to employees, legal representatives, and agents of PACETEQ.

14. Duration and Termination of Contract

  • The duration of the contract is agreed upon individually between the Contracting Parties. If no duration has been agreed, the contract ends at the end of the calendar year in which it was concluded.
  • Good cause for termination exists in particular if:
    • The financial situation of the respective other Contracting Party significantly deteriorates;
    • The customer or a user uses the software beyond the extent agreed in Section 6, or violates the terms of use according to Section 7 and does not remedy the violation within a reasonable period after a warning from PACETEQ;
    • The customer is more than 30 days in arrears with due payments after a reminder.
  • In the event of termination, the customer must immediately cease using the software, remove all installed copies, and delete any backup copies made.
  • At the customer's request and expense, PACETEQ supports the customer in securing their data prior to the end of the contract.

15. Amendment of Terms and Conditions

  • PACETEQ is entitled to update and adjust these GTC at its own discretion, in particular to adapt them to changed legal regulations, new court decisions, or technological innovations.
  • PACETEQ will notify the customer of changes within a period of not less than four weeks and will ask for their consent. If the customer does not agree within four weeks, PACETEQ is entitled to terminate the affected contract for cause.
  • PACETEQ will inform the customer in the notification about the intended change, the applicable deadline, the legal consequences, and the option to reject and terminate.

16. Final Provisions

  • The legal relationship between the Contracting Parties shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  • The exclusive place of jurisdiction for all disputes arising from contractual relationships between the parties is the registered office of PACETEQ.
  • Changes or amendments to the contract require written or text form for proof purposes. This also applies to the modification of the form requirement itself.
  • Insofar as this contract contains loopholes, those legally effective regulations which the Contracting Parties would have agreed upon according to the economic objectives of the contract, had they been aware of the loophole, are considered agreed upon to fill these gaps.

© PACETEQ GmbH · Birkunger Straße 20 · 37327 Leinefelde-Worbis