TERMS OF USE OF ATESTEO GMBH & CO. KG FOR THE TESTING COCKPIT – 12/2023

1. Scope

1.1. These Terms of Use (“ToU”) apply to customers of ATESTEO GMBH & Co. KG (“ATESTEO”, “we”, “our”, “us”) (i) who have concluded a contract with us regarding testing services, e.g. of drivetrains or other components (“Test” or “Tests”) and who want to use the ATESTEO Testing Cockpit as an additional service to the Tests, and (ii) who are an entrepreneur, a legal entity under public law or a special legal entity under public law (“Customer”). The ToU apply between the Customer (as identified in a purchase order regarding the ATESTEO Testing Cockpit, “Purchase Order”) and ATESTEO if the Customer orders the use of the ATESTEO Testing Cockpit.

1.2. The ATESTEO Testing Cockpit is provided as a Software-as-a-Service solution (“Testing Cockpit”). With the Testing Cockpit, depending on the mode ordered by the Customer in the Purchase Order (see description of the available modes in Annex 1), the Customer can view current Tests during Usual Business Hours via an internet browser (to be provided by the Customer). The usual business hours are: Monday to Friday from 8 a.m. to 4 p.m. German time, excluding public holidays at the location of the Drivetrain Test (“Usual Business Hours”). Certain modes of the Testing Cockpit allow communication with the ATESTEO employee carrying out the Tests and adaptions of the parameters of the Test as determined by the Customer and an ATESTEO employee through communication via the Testing Cockpit. Certain modes of the Testing Cockpit also allow a communication between the Customer, an ATESTEO employee carrying out the Tests and an external third party (i.e., persons that are neither employees of ATESTEO nor of the Customer) (“Third Party”). The Third Party receives access to a certain virtual meeting session within the Testing Cockpit via link in an email initiated by the Customer and  generated through the Testing Cockpit (“Invitation Email”) . Access to the Testing Cockpit is permitted from within the European Union and European Economic Area.

1.3. The ToU apply in addition to our General Terms and Conditions of ATESTEO GmbH & Co. KG (see here https://www.atesteo.com/agb/ or https://www.atesteo.com/en/general-terms-and-conditions/ (English version); “GTC”). To the extent a provision of the GTC conflicts with these ToU, these ToU shall prevail.

1.4. The ToU shall also apply to all future business transactions related to the Testing Cockpit without the need to refer to the ToU again in each individual case.

1.5. Our ToU apply exclusively, even if we accept orders without reservation with knowledge of the Customer’s general terms and conditions, render performances or directly or indirectly refer to a letter or the like containing the Customer’s general terms and conditions.

1.6. Conflicting, deviating or supplementary general terms and conditions of the Customer shall only become valid if and to the extent that we have expressly agreed to their application.

2. Subject matter

2.1. ATESTEO will make available the Testing Cockpit to the Customer once the Customer has fulfilled its cooperation obligations (Mitwirkungspflichten) to enable ATESTEO to set up and carry out the Test for which the Testing Cockpit shall be used. Such cooperation obligations are specified and agreed between ATESTEO and the Customer, including but not limited to the specifications in the purchase order and in the contract for the Test.

2.2. The Customer shall have the right to use the Testing Cockpit in accordance with the provisions of these ToU for its own internal business purposes, including the observation of Tests performed by ATESTEO for the Customer.

2.3. ATESTEO and the Customer shall have the right to transfer and store, upload and download Test related data in the Testing Cockpit (“Test-Related- Data”). ATESTEO will delete the Test-Related-Data with completion of the Test and it is the Customer’s responsibility to ensure that Test-Related-Data was transferred to and stored on the Customer’s IT systems prior to this date. ATESTEO is not obligated to provide hosting services for Test-Related-Data after completion of the Test.

2.4. The Testing Cockpit offers three types of mode with different functionalities (Economy Mode, Business Mode or Pilot Mode). The functionalities of the modes are described in Annex 1. The Purchase Order specifies the type of mode to be provided to Customer by ATESTEO.

2.5. ATESTEO makes the Testing Cockpit available to the Customer via internet access and internet browser (to be provided by the Customer). The Customer is responsible for the Internet connection to access the Testing Cockpit. The use of the Testing Cockpit requires the use of an IT-environment (network, operating system, web browser, etc.) that fully supports the HTML5 standard, including server-sent events. Communication between client and server takes place using the HTTP/1.1 and HTTP2 protocols via the server-side TCP port 443. Should other or higher requirements be necessary for technical reasons, ATESTEO will inform the customer accordingly.

2.6. A two-factor-authentication is required to use the Testing Cockpit, and must be authorized and applied by the Customer. ATESTEO offers various options for such two-factor-authentication from which the Customer can choose. If the Customer or its users refuse to carry out a two-factor-authentication, access to the Testing Cockpit is not possible.

2.7. The Customer shall ensure that the functionalities of the Testing Cockpit as described in Annex 1 are suitable to achieve its own purposes pursued. ATESTEO does not provide any customisation services for the Testing Cockpit to the Customer.

3. Contract formation

As regards the formation of the contract with the Customer for the Testing Cockpit (“Testing Cockpit Contract”), clause 2 (Contract Formation) of the GTC apply.

4. Registration via the Testing Cockpit interface

4.1. In order to use the Testing Cockpit, after conclusion of the Testing Cockpit Contract, the Customer must provide to us the names and email addresses of the intended users (“Authorized Users”) and we will send by email to the provided email addresses of the Authorized Users the login-data (username and password) as well as the ATESTEO URL to access the Testing Cockpit. Unless otherwise stated in the Purchase Order, the Customer can name a maximum of two Authorized Users.

4.2. Unless otherwise stated in the Purchase Order, the Customer may only authorize the Authorized Users to use the login-data for access to the Testing Cockpit. The Authorized Users of the Customer must register on the Testing Cockpit interface using the provided login-data, authenticate via a two-factor-authentication tool, and accept the End User License Agreements for the Testing Cockpit (see here EULA). The Customer is responsible for ensuring that only Authorized Users authenticate themselves via the two-factor-authentication tool.

4.3. The Customer is required to keep provided login-data for the Testing Cockpit confidential and is required to take appropriate steps to ensure that the employees of the Customer, in particular the Authorized Users, keep the provided login-data for the Testing Cockpit confidential and do not share the login-data with any third person (including colleagues).

4.4. The Customer will inform us immediately if the Customer becomes aware of any indications that unauthorised persons have or might have access to the Customer’s account of the ATESTEO customer portal.

5. Remuneration and payment terms

5.1. The Testing Cockpit is offered as Economy Mode, as Business Mode and as Pilot Mode with different functionalities as described in Annex 1.

5.2. The Economy Mode is free of charge for the Customer.

5.3. The Business Mode and the Pilot Mode are subject to a fee as set out in the Purchase Order. The Customer is required to pay the fee monthly to ATESTEO. The monthly fee must be paid as of the Effective Date for the term of the Testing Cockpit Contract.

5.4. For the first month of the term of the Testing Cockpit Contract, the Customer is required to pay (i) the full monthly fee if the Effective Date falls between the 1st day and the 15th day of the month and (ii) 50% of the monthly fee if the Effective Date falls after the 15th day of the month. For the last month of the term of the Testing Cockpit Contract, the Customer is required to pay (i) 50% of the monthly fee if the last day of the term of the Testing Cockpit Contract falls between the 1st day and the 15th day of the last month and (ii) the full monthly fee if the last day of the term of the Testing Cockpit Contract falls after the 15th day of the last month.

5.5. Clause 6 (Payment Terms) and clause 7.2. (Prices) of the GTC apply accordingly. For the avoidance of doubt, time spent by an ATESTEO employee in connection with the use of the Testing Cockpit by the Customer, in particular but not limited to virtual meeting in the testing cockpit will be invoiced on the basis of time and material expenses in accordance with our hourly rates.

6. Rights of use

6.1. We grant the Customer the non-exclusive, non-transferable, non-sublicensable right, limited in time to the term of the Testing Cockpit Contract, to use the Testing Cockpit (through Authorized Users) as Software-as-a-Service in accordance with the provisions of these ToU. Any exclusive use and exploitation rights in the Testing Cockpit remain with us and our licensors.

6.2. If we make available to the Customer any new versions, updates or upgrades with regard to the Testing Cockpit during the term of the Testing Cockpit Contract, the foregoing use rights for Customer shall also apply to these.

6.3. The Customer (through the Authorized Users) is not entitled to use the Testing Cockpit beyond what is necessary for the purposes specified by the ToU. In particular, the Customer is not entitled to permanently reproduce, translate, edit, arrange, rework, distribute, publicly reproduce, decompile, reverse engineer or disassemble the Testing Cockpit, unless this is permitted under Sections 69d or 69e German Copyright Act (Urhebergesetz). The Customer is not entitled to use the Testing Cockpit for the interests of third parties.

6.4. The Customer has the right to invite Third Parties to a virtual meeting session via the Testing Cockpit by generating an Invitation Email through the Testing Cockpit. To attend a virtual meeting session via the Testing Cockpit, the Third Party must accept the EULA for the Testing Cockpit (see here EULA). Through acceptance of the EULA, we will grant the Third Party the necessary rights to use the Testing Cockpit for a particular virtual meeting session.

7. Availability

7.1. To the extent required for the Business Mode and the Pilot Mode under the ToU, we will carry out regular maintenance on the Testing Cockpit. Such maintenance will be carried out outside the Usual Business Hours, unless due to compelling reasons maintenance must be carried out at a different time.

7.2. We have taken reasonable steps to enable the availability of the Testing Cockpit in accordance with the ToU and to maintain the operation of the Testing Cockpit. Nevertheless, the Testing Cockpit may be temporarily inaccessible. These interruptions may be caused by power failure, internet failure, technical errors, or maintenance work. In such a case, we will endeavour to restore availability as quickly as possible, insofar as the cause of the unavailability is within our control. In general, we endeavour to provide an availability of the Testing Cockpit of 98%, calculated as an annual average, at the transfer point (router output of our computer centre in which the Testing Cockpit is hosted and operated on our servers).

8. Warranty

8.1. In deviation to clause 7.3 of the GTC, for Economy Mode the following applies: The Customer is not entitled to claim rectification or damages in case of defects of the Testing Cockpit and we are not required to maintain the Testing Cockpit in part or as a whole. Section 600 of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”) remains unaffected. The Customer shall have no right of self-remedy to remediate any defects.

8.2. For the Business Mode and the Pilot Mode, the following applies:

8.2.1. The Testing Cockpit shall only deem to be defective if it does not have the quality agreed in the Testing Cockpit Contract and is therefore not suitable for the contractual use.
8.2.2. The Customer is obliged to notify us of any defects without undue delay, providing a meaningful description of the defect so that we can determine the cause of the defect.
8.2.3. If we determine that we are responsible for the defect, we will remedy the defect within a reasonable period of time in accordance with clause 7.3 of the GTC.
8.2.4. Any insignificant impairment of the functionalities of the Testing Cockpit does not entitle to a reduction of the fees as provided in Section 538 (1) BGB.
8.2.5. The strict liability for damages (Section 536a BGB) for defects existing at the time of the conclusion of the Testing Cockpit Contract is excluded, unless expressly guaranteed by us (guarantee, Section 276 (1) BGB).
8.2.6. The right to self-remedy according to Section 536a (2) BGB is excluded.

9. Liability

9.1. For Economy Mode, the following applies regarding the limitation of liability: As the Testing Cockpit is provided to the Customer free of charge, the liability of the Customer is limited as provided in Sections 599, 600 BGB.

9.2. For Business Mode and Pilot Mode, clause 10 (Liability) and clause 11 (Default and Impossibility) of the GTC apply.

10. Obligations of the Customer

10.1. The Customer shall ensure that the Testing Cockpit is only used by suitable, technically trained employees.

10.2. The Customer is obliged to comply with all applicable legal regulations, official requirements and approval obligations during and for the use of the Testing Cockpit (if any).

10.3. In case ATESTEO suffers damages and/or losses (“Losses”) in connection with a Third Party’s use of the Testing Cockpit where such Losses were culpably caused by the Third Party, Customer is liable towards ATESTEO for such Losses and shall compensate ATESTEO for such Losses in the same manner and to the same extent it would be required if such Losses where caused by an employee of the Customer, unless the Third Party was invited by ATESTEO on its behalf pursuant to 11.3.

10.4. The Customer is responsible for ensuring that the use of personal data of the Third Party in the context of the Invitation Email is in compliance with applicable law (in particular marketing and data protection law). The Customer shall inform the Third Party in advance before initiating an Invitation Email. The Customer shall hold harmless and indemnify ATESTEO from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs, and expenses brought by any authority or any other party in connection with an alleged violation of applicable laws in relation to the Invitation Email.

11. Our Rights

11.1. We are entitled to temporarily suspend the Customer’s access to the Testing Cockpit if we identify a potentially severe risk to the security of the Testing Cockpit, our IT systems and/or the Customer’s IT system. In this case, we will inform the Customer immediately. We will lift the suspension and re-grant access to the Testing Cockpit as soon as possible once the risk does – in our consideration – no longer exist.

11.2. We have the right to update or further develop the Testing Cockpit at any time or to adapt it due to changes in the legal situation, technical developments, or to improve the functionalities or IT security taking into account the legitimate interests of the Customer. In the event of a significant impairment of the legitimate interests of the Customer, the Customer shall have an extraordinary right of termination.

11.3. For Pilot Mode, we are entitled to invite Third Parties, also on behalf of the Customer, to virtual meeting sessions to discuss in the virtual meeting sessions with such Third Parties in a reasonable manner content of the Testing Cockpit or content that had been discussed with the Customer. The initiation of an Invitation Email to a Third Party by the Customer is deemed as approval of the Customer that ATESTEO may provide to the Third Party any information including information of the Customer subject to confidentiality obligations which seem adequate in the context of the participation of the Third Party in the virtual meeting, The Customer will provide such approval in writing, if requested by ATESTEO.

12. Duration and Termination

12.1. The Testing Cockpit Contract shall commence on the date specified in the Purchase Order or in the event an order confirmation is issued by ATESTEO, in the order confirmation (“Effective Date”).

12.2. Unless otherwise stated in the Purchase Order, the term of the Testing Cockpit Contract shall expire with completion of the Test.

12.3. During the term of the Testing Cockpit Contract, ATESTEO and the Customer may agree on upgrading the selected mode (i.e., upgrade from Economy Mode to Business Mode or Pilot Mode, and from Business Mode to Pilot Mode). Clause 5 of these ToU will apply accordingly. A downgrade of the selected mode (i.e., downgrading from Pilot Mode to Business Mode, and from Pilot Mode to Business Mode to Economy Mode) is excluded.

12.4. The right of both parties to terminate the Testing Cockpit Contract without notice (außerordentliche Kündigung) in accordance with the statutory provisions shall remain unaffected.

12.5. Any termination of the Testing Cockpit Contract must be in writing to be effective.

13. Miscellaneous

13.1. For the avoidance of doubt, in addition to the provisions of the GTC mentioned in this ToU, the following clauses of the GTC apply to the Testing Cockpit Contract:

13.1.1. Clause 3. (Industrial Property Rights/Know-How/Utilization Rights),
13.1.2. Clause 4. (Rights of Use and Industrial Property Rights of Third Parties),
13.1.3. Clause 5. (Description of Performances/Place of Performance),
13.1.4. Clause 7.1. (Obligations of the Customer to Cooperate),
13.1.5. Clause 9. (Statute of Limitations),
13.1.6. Clause 12. (Confidentiality),
13.1.7. Clause 13 (Export Control),
13.1.8. Clause 14 (Compliance),
13.1.9. Clause 15 (Data Protection),
13.1.10. Clause 16 (Final Provisions)

13.2. Annex 1 is a material part of this ToU.

13.3. The assignment of rights and obligations of the Customer under these ToU requires the prior written consent.

Annex 1: Description of the Functionalities

Mode 1 – Economy Mode:

a. Overview of one state variable, such as cycle, driven kilometres or similar, as agreed between the Customer and ATESTEO,

b. Display of time course and progress of the Test(s).

(“Economy Mode”)

Mode 2 – Business Mode:

a. Overview of state variables, such as cycle, driven kilometres or similar, as agreed between the Customer and ATESTEO,

b. Display of time course and progress of the Test(s),

c. Display of channels with unit and value in numbers or curves,

d. Presentation of test data of Test(s) in real time, including display or time course and progress of Test(s) (1 frame per second),

e. Control of the chart window with the “Pause”, “Pan”, “Zoom” functions,

f. Live transmission (1 frame per second) of the Test status and optional display of a web cam image of the Test, if agreed between Customer and ATESTEO.

(“Business Mode”)

Mode 3 – Pilot Mode:

a. Overview of state variables, such as cycle, driven kilometres or similar, as agreed between the Customer and ATESTEO,

b. Display of time course and progress of the Test(s),

c. Display of channels with unit and value in numbers or curves,

d. Presentation of test data of Test(s) in real time, including display or time course and progress of Test(s) (1 frame per second),

e. Control of the chart window with the “Pause”, “Pan”, “Zoom” functions,

f. Live transmission (1 frame per second) of the Test status and optional display of a web cam image of the Test, if agreed between Customer and ATESTEO,

g. Virtual meetings between the Customer and an ATESTEO employee (appointment made in advance), with

(1) possible remote control of agreed devices,
(2) Live analysis and adjustment of test bench data (together with ATESTEO employees).

h. Virtual meeting sessions between the Customer, an ATESTEO employee (appointment made in advance) and a Third Party, or between ATESTEO employee with a Third Party with

(1) possible remote control of agreed devices,
(2) Live analysis and adjustment of test bench data (together with ATESTEO employees).

The Third Party has access only to the particular virtual meeting session for which a link via the Invitation Email was initiated in the Testing Cockpit either by the Customer or ATESTEO. The link can only be created via the Testing Cockpit. The Invitation Email with the link must at least include the following information:

(1) Name of the Customer and user initiating the Invitation Email (contact person);
(2) Link to the EULA and information that clicking on the link results in acceptance of the EULA;
(3) Note that by logging in, the invited person will be subject to a legally compulsory person-specific Export Control; and
(4) Note that the invited person will only have access to the particular virtual meeting session for which a link via the Invitation Email was sent by either the Customer or ATESTEO.

(“Pilot Mode”)