General Terms of Use - ServicePlus App

By downloading the software application from the Apple App Store or the Google Play Store, you are entering into a licensing agreement (hereinafter referred to as the “Agreement”) with EMAG GmbH & Co. KG, Austraße 24, D-73084 Salach (hereinafter referred to as “EMAG”) regarding the use of EMAG’s ServicePlus App (hereinafter referred to as the “App”).

Apple Inc. or any of its affiliates (hereinafter referred to as “Apple”) or Google Inc. or any of its affiliates (hereinafter referred to as “Google”) will not become parties to the Agreement. However, Apple or, respectively, Google will be entitled to enforce your obligations under the Agreement. By downloading the App, you consent to the following General Terms of Use.

1.Use of the App

1.1Upon your downloading of the basic version of the App free of charge, EMAG grants you the free, non-exclusive, non-transferrable right to use the basic functions of the App on a device which is owned by you or is in your possession and on which the software can run in accordance with the system requirements. You can view the system requirements in the Apple App Store or the Google Play Store before entering into the Agreement.

1.2The App is upgraded on a continuous basis and EMAG may offer you new functions and services that extend beyond the free basic version. Additional functions and services in the App may be or may become subject to a fee. If this is the case, EMAG will inform you of the pricing and the features in advance. In any event, the free basic functions will be preserved and will remain operable.

1.3You are not entitled to copy the App or disseminate or otherwise provide the App to any third parties (including, but not limited to, renting, leasing, lending or sub-licensing the App) or to otherwise use the App in a manner reserved by the author or authors. In addition, you are not entitled to alter, reverse engineer, decompile, or disassemble the App’s program code or any part or parts thereof or to otherwise identify the source code or to create derivative works from it. The provisions of §§ 69d and 69e of the Urheberrechtsgesetz (Copyright Law of Germany, UrhG) shall remain unaffected.

1.4The above-mentioned provisions also apply to any and all updates/upgrades of and program extensions for the App offered for downloading by EMAG in the Apple App Store or the Google Play Store, provided such updates/upgrades are not the subject of a separate Agreement. If this is the case, the licensing terms for the respective update/upgrade or program extension will be decisive.

1.5The App may include individual elements or modules licensed by one or more third parties under open-source licenses (hereinafter referred to as “Third-Party Software”). For more information and the applicable licensing terms for such Third-Party Software please refer to the pertinent documentation. The use of Third-Party Software shall be subject to the provisions specified therein.

1.6In any event, EMAG reserves all rights to the App.

2.Functions and services of the App

2.1Please note that specific functions of the App require an operational data connection on your mobile device or that a data connection becomes established when you use specific functions of the App.

2.2You can use the App to contact EMAG’s Customer Service, send inquiries regarding serviceable parts, or make inquiries regarding other ServicePlus functions and/or services.

2.3You can use the App to place a direct call to the Service hotline you need, to have an EMAG Customer Service staff member call you at a time you choose, to send an e-mail to EMAG’s Customer Service and/or to send a video to EMAG’s Customer Service via the camera in your mobile device.

2.4Please consult the App to learn which functions are available to you.

2.5You can use all the functions of the App only if you are logged into your ServicePlus user account and if the App has established a data connection to EMAG’s server.

3.Registration process

3.1To use the App, you have to create a user account (registration process). During this process, you will be required to provide some or all of the following information: your first name and last name, the name of your company, your position in the company, your area of responsibility, your telephone number(s), your e-mail address (user ID) and a password defined by you. The information required may vary among regions.

3.2After you have registered for the App, you will be sent an e-mail confirming your registration and the activation of your user account. The e-mail will include a link through which you will need to confirm your registration.

4.Logging into your user account

4.1You need to keep your password confidential at all times and must not disclose it to any third party. If your password has gone missing (If you forget your password) or if you suspect it has been accessed (used) by a third party, you are obligated to inform EMAG without undue delay using the contact information provided in the App and to change your password. To change your password or to generate a new one, use the Change Password or the Forgot your Password? function in the App.

4.2Most of the functions and services in the App require you to log into your user account. For security reasons you will be logged out automatically after a specific period of time. If you activate the Stay Logged In function, the automatic logout will take place significantly later, in some cases after several months. Please note that using this convenient function increases the risk of third parties who have access to your mobile device using the App without your consent. You will be liable vis-à-vis EMAG for any and all misuse by third parties. To deactivate the Stay Logged In function, log out of your user account. Closing the App will not affect the status.

5.Duty to cooperate

5.1When using the App, you undertake to comply with the applicable duty of care and to review the results generated in a reasonable manner before said results are used.

5.2You consent to updates being executed automatically in line with the settings in your operating system, which updates, from an objective point of view, are not to your detriment compared to the services set forth in the Agreement and which updates do not deviate significantly from the services set forth in the Agreement, for example, security updates, new and enhanced functions, and updates for troubleshooting. If required, please adjust the settings and contact your provider. EMAG does not have any influence in this regard. Should any updates require additional authorization, you will be notified prior to their installation. If you do not consent to such additional authorizations, the update will not be executed and the operation of the App may be compromised or the App may have to be deactivated altogether. This regulation shall apply mutatis mutandis if the App needs to be changed to meet any revised requirements implemented by third parties from which third parties EMAG obtains preliminary work or if such changes become necessary due to key technical innovations in the market.

5.3To the extent you are an entrepreneur pursuant to § 14 of the Bürgerliches Gesetzbuch (Civil Code of Germany, BGB) and as such were required to pay a fee to acquire the App, your duty to provide notice of defects (Rügeobliegenheiten) pursuant to § 377 of the Handelsgesetzbuch (Commercial Code of Germany, HGB) applies.

5.4All other technical requirements regarding the use of the App are described in the application in the Apple App Store or the Google Play Store including, but not limited to, the operating systems/versions and mobile devices supported.

6.Warranty and liability

6.1Warranty and liability terms for free software 

6.1.1EMAG is liable for defects in quality and title for any legal reason whatsoever only to the extent that EMAG concealed any such defect maliciously. In all other cases, because the software is provided at no charge, EMAG and its legal representatives and agents are liable for reimbursement of damages only in cases of intentional or grossly negligent misconduct or of culpably caused damage to life, body or health. Any and all claims arising from the Produkthaftungsgesetz (Product Liability Act) remain unaffected.

6.2 Limitation of liability for software subject to a fee

If you acquired the software for a fee, EMAG is liable legally only as set forth below. In the following cases, EMAG’s liability is based on the applicable laws:

• damage caused by intent or gross negligence;
• damage resulting from non-compliance with guarantees provided in writing to the extent covered by the purpose of the guarantee;
• damage resulting from malice;
• damage resulting in bodily harm or personal injury;
• instances as set forth in the Product Liability Act,
• instances where § 44a of the TKG (liability of providers of publicly accessible telecommunication services) applies.

6.2.1If liability is not limited as specified above, the following applies: In the case of minor negligent breach of minor contractual obligations, EMAG is not liable for damages; in all other cases, EMAG’s liability for damages caused by minor negligence is limited to damages the occurrence of which typically is to be expected as part of the respective contract relationship (hereinafter referred to as “Typically Foreseeable Contract-Type Specific Damage”). Damage resulting from the use of the App on devices that have full administrative access (e.g., rooting in Android devices) are deemed to be non-foreseeable.

6.2.2The same shall apply in the case of negligent breaches of obligations by legal representatives, executives and/or agents. If you are an entrepreneur in accordance with § 14 of the BGB, it is hereby agreed that the Typically Foreseeable Contract-Type Specific Damage arising from breaches of obligations under the Agreement do not exceed the value of the remuneration paid to EMAG hereunder. The liability limitations set forth above also apply to claims regarding reimbursement of expenses.

6.3To the extent EMAG’s liability is excluded or limited under these General Terms of Use, the same exclusion or limitation shall apply to the liability of EMAG’s corporate bodies, agents and staff members.

6.4The warranty period for defects in quality and title of software you as an entrepreneur acquired for a fee is twelve months. This rule does not apply if liability is based on legal provisions as set forth in 6.2 above.

7.Availability and notifications

7.1The App can inform you of events by sending notifications to your mobile device. EMAG can transmit such notifications only if it is ensured that

• the App was installed in compliance with the instructions;
• your Internet connection and EMAG’s servers with which your system communicates operate without interruption;
• you have set your mobile device and the App to allow the receiving of App notifications; and
• your mobile device’s data connection is active.

7.2To transmit notifications to your mobile device, EMAG uses push notifications provided by Apple and/or Google. To this end, the notifications are transmitted to your mobile device. For more information on these notifications and the data included in them, please refer to EMAG’s Data Protection Declaration and Consent to the Use of EMAG’s ServicePlus App.

7.3The availability of the system may be interrupted for necessary maintenance and service measures.

8.Support

8.1 In case of disruptions to the use of the App, please contact EMAG atEMAG GmbH & Co. KG, Austraße 24, D-73084 Salach

E-mail: service.serviceplusappnoSpam@emag.com

8.2Once you have contacted EMAG, your customer-specific data will be used for targeted purposes.

8.3If you are provided with support services, you may be asked to provide data for identification purposes.

8.4To enable EMAG to process inquiries and to fulfill its legal documentation obligations, EMAG will retain the service history for ten years after your last interaction with EMAG’s Customer Support. Problem-specific personal data will be deleted automatically no later than three years after the respective problem has been solved. Attachments will be handled in compliance with the periods of retention stipulated by law and retained accordingly or, respectively, will be deleted automatically no later than three years after the respective problem has been solved.

8.5Find more information regarding the handling of personal data in EMAG’s Data Protection Declaration and Consent to the Use of EMAG’s ServicePlus App.

9.Assignment and transfer

9.1If and when you temporarily and without charge allow a third party to access your mobile device on which the App is installed, you remain responsible for compliance with the provisions of these General Terms of Use. All other assignments of usage rights are subject to EMAG’s express consent. Also, assignments may be made impossible due to technical blockages installed by the provider which distributes the software.

9.2The use of the App by third parties may affect settings related to data protection and privacy which may lead to contradictory behavior. You are responsible for ensuring that third parties comply with use the required settings.

9.3If you give your device on which the App is installed to a third party on a permanent basis, please 

9.3.1use the function Factory Settings/Reset in the settings menu to delete all user- and system-related data from the App; or

9.3.2delete the App before you give your device to such third party.

10.Violation of these General Terms of Use

10.1You undertake vis-à-vis EMAG to use these offerings only for purposes which are not in violation of these General Terms of Use, the applicable German laws, or third party rights. If and when you allow a third party to use the App on your mobile device, your duty of care includes informing such third party of and reasonably controlling compliance with these General Terms of Use. EMAG may block access to the App if you breach your obligations under these General Terms of Use.

10.2By downloading the App you confirm that your permanent residence is not in a state which is subject to U.S. embargo regulations or which has been defined as a terrorism-supporting state by the U.S. administration and that you are not on any list of illegal or restricted parties which has been prepared by the U.S. administration.

11.Changes to these General Terms of Use

11.1If and when EMAG intends to change and/or amend these General Terms of Use or individual provisions hereof, EMAG will inform you expressly of the existence of such revised version and will provide you with a copy of the revised text.

11.2You are entitled to object to such changes. If you do, your user relationship will be continued to the same extent as under the previous Terms of Licensing and Use. If such continued use is not technically feasible, EMAG is entitled to terminate the user relationship with you and to prohibit you from continuing to use the App. Your statutory warranty rights will remain unaffected.

11.3If you fail to object to the changes within six weeks after having received the respective notification you shall be deemed to have accepted the revised General Terms of Use.

12. Governing Law; Venue

12.1These General Terms of Use shall be subject to the substantive law of the Federal Republic of Germany under exclusion of the CISG. If you are not a consumer or do not have a proper venue in Germany, the venue for all disputes arising from or in connection with these General Terms of Use shall be Salach, Germany. However, EMAG also shall be entitled to file suit against you at your general venue or at any other venue responsible in the specific case.

13.Severability

13.1 Should any provisions or parts of these General Terms of Use be or become invalid, the validity of the remainder of the provisions and parts of these General Terms of Use shall remain unaffected.