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General Terms and Conditions of flinc AG (GTC)

§ 1 Application

(1) The following general terms and conditions apply to every performance, offer and service (“services”) advertised and supplied by flinc AG (“flinc”), even if the service is accessed from outside the Federal Republic of Germany.

(2) Provisions in the general terms and conditions of flinc’s contracting parties (“users”) which conflict with or deviate from the present provisions only apply if flinc explicitly agrees to them in writing.

(3) For entrepreneurs (§14 BGB – German Civil Code), legal entities under public law or special funds under public law (“entrepreneurs”), flinc AG’s Special Terms and Conditions for entrepreneurs apply flinc.org/terms_corporate.

§ 2 Services

(1) Currently, flinc offers its users two services:

  • flinc Portal (§ 9) and

  • instantnavi (§ 10).

(2) flinc will endeavour to offer access to the services with as little downtime as possible. However, even with all due care, outages cannot be excluded. flinc reserves the right to modify or end the service at any time.

§ 3 Obligations of the user

(1) Users must act in a proper and considerate manner in dealings with flinc and other users.

(2) In the process of registration and using the flinc services, the user undertakes to give truthful information on his/her personal data and circumstances and to keep this data up to date. A person may only register once for a service. If excluded, a user may not register again.

(3) Users who do not have full legal capacity to contract must have the approval of their legal guardian to use the services. This approval must be given in writing if required.

(4) Users must not abuse the opportunities to access the services. They must refrain from illegal acts. Users must protect their access data from third parties and must not make it available to them.

§4 Collection,storageandtransmissionofdata

flinc’s privacy statement, which is deemed to be accepted by every user through use of the services, is available at flinc.org/privacypolicy.

§ 5 flinc’s rights

In the event of infringement of the present general terms and conditions (GTC) or reasonable suspicion of infringement by a user, flinc is entitled to exclude the user and if necessary to delete content used by or addressed to the user without delay. flinc will give the user reasonable warning before exclusion, unless the infringement is so serious that flinc cannot be reasonably expected to continue the use.

§ 6 flinc’s liability

(1) There is no exclusion of liability for loss of life, physical injury or injury to health or other loss or injury due to violation of a substantive contractual obligation due to negligent breach of obligation by flinc or its representatives or agents and liability for other loss or injury due to breach of obligation through intent or gross negligence by flinc or its representatives or agents.

(2) All liability beyond that in (1) above is excluded.

(3) flinc is further not liable for loss due to force majeure, civil disturbance, war or natural disaster or other events outside flinc’s control (e.g. strike, lockout, disruption of traffic, domestic or foreign government action).

§ 7 Amendments to the general terms and conditions

(1) Amendments to the GTC are only effective with the user’s agreement. The agreement is deemed to be given if flinc sends the amended general terms and conditions to the user by email or notes the amended GTC in the course of providing its services and the user does not object within one month, where the user is clearly visibly notified of this legal consequence in the email.

(2) Amendments regarding costs are only valid if the user explicitly acknowledges the amendment in the course of using the services or in some other appropriate form. flinc reserves the right to make further use of the flinc platform dependent on such acknowledgement.

§ 8 Settlement of disputes, applicable law, venue

(1) All users are required to settle any disputes with flinc or other users under the present terms and conditions amicably, possibly with flinc’s assistance. However, they are not obliged to do so.

(2) These terms and conditions are subject to German law with exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(3) If the user is a merchant within the meaning of commercial law, a legal entity under public law or a special fund under public law, the agreed venue is the place of flinc’s registered office. This also applies if the user does not have a general venue or residence in Germany or the user’s usual place of residence is unknown at the time a complaint is filed.

§ 9 flinc portal

(1) Description of service: flinc provides an Internet platform at flinc.org (“portal”) and client software for use by mobile devices (cell phone, GPS) for partially automated brokering of opportunities for ride sharing. Persons offering a ride (“drivers”) and persons seeking a ride (“passengers”) enter their planned route on the portal or mobile device, flinc matches the route and suggests passengers or drivers. Passengers and drivers can make a binding request to the proposed drivers and passengers through the portal or mobile device. A brokerage agreement comes into being when a ride share agreement is entered into by driver and passenger through confirmation of the request.

(2) Contractual relationships: flinc does not provide any rides itself and is not a party to any ride share agreement. The ride share agreement is exclusively between driver and passenger. Claims arising out of the ride share agreement are exclusively between driver and passenger. flinc does not guarantee successful brokerage of ride sharing opportunities. No guarantee is given. flinc is not liable for successful brokerage or completion of a ride.

(3) Users: Users must register to use the flinc platform. There is no right of registration. flinc is entitled to reject applications without giving any reason. Only natural persons are entitled to register as users. Each user is responsible for checking the identity of parties to an agreement and the correctness of other data. The possibility cannot be ruled out that a user account may have false contact and other data. flinc does not normally check the identity of users.

(4) User content: The portal offers users the technical opportunity to publish their own content (routes, ratings, profile information, news etc.). Content published by users on the portal is not reviewed by flinc and does not represent flinc’s opinion. If there are indications of abuse or illegal content, flinc will, however, review reported content and may delete it. By publishing content on the portal, the user warrants that it is free from third party rights and grants flinc a free, unrestricted, simple right of use in the content.

(5) Commercial use: Commercial provision of ride sharing is only allowed in exceptional circumstances, subject to the prevailing legislation and acceptance of flinc AG’s Special Terms and Conditions for Entrepreneurs, and with the explicit approval of flinc. Commercial rides are characterised in particular by the fact that the driver offers them with the intent to profit or that the vehicle is licensed for more than nine (9) occupants including the driver.

(6) Obligations of the driver: Drivers must possess a valid driving licence and third party insurance. Drivers must be fit to drive at the start of a journey. Drivers are liable for complying with relevant applicable legislation and regulations, such as the German road traffic regulations (German StVO) or Passenger Transportation Act (German PeBefG) or corresponding legislation and regulations for travel abroad.

(7) Ratings: The portal enables users to evaluate each other after completion of a ride agreement. Ratings are not normally checked by flinc. Users are obliged to give only truthful information in ratings and must comply with the law. All use of the rating system other than for this intended purpose is prohibited. Specifically, users are prohibited from making abusive or improper ratings, rating themselves or having third parties submit self-ratings, including circumstances in ratings which are not connected with performance of the underlying agreement, or using ratings for a purpose not connected with the portal.

(8) flinc’s rights: flinc is entitled at all times to remove user offers and requests or user profiles from the portal. flinc reserves the right to prevent excluded users from registering, including by technical filters.

(9) Deletion of a profile: Users can delete their profile at any time through flinc’s profile management.

(10) Exclusion of liability: flinc is not liable for loss and injury arising out of a ride share opportunity brokered on the portal. This exclusion of liability applies to all types of loss and injury with the exception of §7 (11), and specifically for loss of profit or indirect loss, regardless of whether this is to the user or third parties. Specifically, flinc is not liable for loss or injury arising out of the failure to broker a ride share opportunity. There is no entitlement to enter into a ride share agreement.

§ 10 instantnavi

(1) Description of service: flinc is providing a browser-based navigation system for mobile devices (“instantnavi”) at instantnavi.com. A requirement is that a user (“destination specifier”) registers with instantnavi with an email address. As an alternative, they can register using their existing Twitter or Facebook account. The user can then specify a destination, change the appearance of the user interface in the mobile browser and add further information and functions. The destination specifier can also assign a label for the subpath of the link which other users (“destination seekers”) can use to call up the navigation for mobile devices. Destination seekers need not be registered with instantnavi for this. After the link to the destination is accessed on the destination seeker’s cellphone, the browser uses GPS to determine the seeker’s location and initiates the navigation sequence.

(2) Third-party providers: flinc uses maps by Mapbox and navigation through CloudMade to implement instantnavi.

(3) Deletion of a profile: Users can delete their profile at any time through instantnavi’s profile management.

(4) Deletion by flinc: flinc is entitled to delete one or all destinations of a destination specifier as well as the user account.

(5) Exclusion of liability: flinc is not liable for losses or injury to destination specifiers, seekers or third parties arising out of the use of instantnavi. This exclusion of liability applies to all types of loss and injury with the exception of §9 (1), and specifically for loss of profit or indirect loss, regardless of whether this is to the user or third parties. Specifically, flinc is not liable for loss arising out of unsuccessful navigation.

§ 11 Severability clause

If a provision of these general terms and conditions is or becomes invalid or these general terms and conditions have a gap which needs to be filled, this does not affect the validity of the other provisions. The invalid provision or gap is replaced by a valid provision which most closely approaches the economic interests of the parties and which the parties would have agreed if they were aware of the invalidity of the provision.

§ 12 Notification of right of cancellation

If you register with flinc and hence enter into this use agreement, the following provisions apply to you as a consumer within the meaning of the act (§ 13 BGB – German Civil Code):

(1) Right of cancellation: You can cancel your agreement within 14 days without reasons in text form (e.g. letter, fax, email). This period starts after receipt of this information in text form, but not before entry into the agreement and not before compliance with our obligations to provide information under Article 246 §2 in combination with §1 paras. 1 and 2 EGBGB (Introductory Law to the German Civil Code) and our obligations under § 312g para. 1 sentence 1 BGB in combination with Article 246 §3 EGBGB. Timely despatch of the cancellation is sufficient for compliance with the cancellation period. Cancellation must be sent to: flinc AG, Am Herrschaftsweiher 11, 67071 Ludwigshafen, Germany. Email: help@support.flinc.org

(2) Consequences of cancellation: In the event of a valid cancellation, the benefits received by both parties must be returned together with any derived benefits (e.g. interest). If you are not able to return the received benefits in whole or in part or only in corrupted condition, you must compensate us to that extent. This can lead to your liability for the contractual payment for the period up to cancellation. Such payment must be met within 30 days. This period begins for you at the time of sending in your cancellation, for us with their receipt.

(3) Special notes: Your right of cancellation lapses prematurely if the agreement is completely fulfilled by both sides at your express wish before you exercise the right of cancellation.

End of notification of right of cancellation.

Language Remark

This text is an English translation of a German Version. In the event of any inconsistency between the German and the English version, the German version shall prevail.

As at: 8 March 2013 Version (No.): 5