GENERAL TERMS AND CONDITIONS OF PUBLIC IN MOTION GMBH FOR COMMERCIAL AGENCY AGREEMENTS
1. Scope of Performance, Integral Parts of the Agreement
The Commercial Agent operates an internet-based platform called TALIXO the purpose of which is to provide passenger transportation services to end customers and to enable Contractors to offer passenger transportation services to end customers. The Commercial Agency Agreement to be entered into between the Commercial Agent and the Contractor shall place the Commercial Agent in a position to offer the Contractor's services to end customers on the TALIXO platform. The Contractor shall publish a passenger performance offer that comprises the Contractor's qualifications, vehicles, prices and any other characteristics relevant for performance on the TALIXO platform and the Commercial Agent shall present such performance offer to end customers on behalf of the Contractor. End customers will be enabled to search the TALIXO platform for vehicles and transportation capacities available and book them via this booking platform. As far as the passenger transportation services are concerned, the Commercial Agent, in the relationship between the Contractor and the end customer, shall act as commercial agent endowed with a contract signing authority. In the context of passenger transportation services, a performance relationship shall only come into existence between the Contractor and the end customer. The invoicing will be performed by the Commercial Agent in the Contractor’s name and on his behalf. The Commercial Agent will collect the claims assigned to him in his own name and on his own account.
2. Service Conditions
The following service conditions are deemed to have been agreed upon and need to be met and fulfilled with a view to the scope of performance described in Section 1:
2.1 Legal Service Conditions
The Contractor guarantees that he/she/it has any and all qualification, permit and insurance policy required for transporting passengers according to the applicable law and agrees to duly maintain any such qualification, permit and insurance policy. The Contractor further warrants that neither currently nor in the past have any proceedings been filed or initiated against him/her/it or are any proceedings currently pending against him/her/it under industrial law on the grounds of unreliability.
The Contractor must furnish proof of satisfaction of these conditions (a) before starting to use the platform and (b) after already having started to use the platform in the event that the Commercial Agent at any time thereafter requests such a proof. The Commercial Agent shall promptly be notified of any changes that may occur.
2.2 Technical Service Conditions
The Contractor undertakes to have fail-safe internet-enabled mobile devices (smart phones, computers, tablet PCs) installed in vehicles operated by him/her/it in the context of his/her/its business and to constantly have these devices on during vehicle operating times so as to enable communication between the vehicles operated by the Contractor and the Commercial Agent.
The Contractor further undertakes to install and use the Commercial Agent's Driver App on internet-enabled mobile devices (smart phones, computers, tablet PCs).
The Contractor undertakes to pass on to his/her/its drivers the duty to comply with the aforementioned terms and conditions in a suitable way within his/her/its business. The Contractor agrees that the Commercial Agent will no longer be obliged to perform services in case of non-compliance with any or all of the service conditions mentioned in the present section 2.
2.3 Logistical service conditions (duty to inform)
2.3.1 The Contractor shall place any documents that may be required for the Commercial Agent to perform its services (price lists, general terms and conditions etc.) at the Commercial Agent's disposal free of charge, if applicable send the Commercial Agent changes and amendments therein and keep such documents placed at the Commercial Agent's disposal up to date at all times. These documents shall remain the Contractor's property unless they have already been used for their destined purpose and therefore no longer exist.
2.3.2 The fleet manager comprises an input mask for key documents (price lists, driver details, vehicle information) which the Contractor shall be required to keep up to date. These documents shall be considered to have a legally binding effect (the price lists in particular).
2.3.3 The Contractor has the duty to put in any other business-related information and details such as vehicle lists, driver lists, shift schedules and rides arranged by the Contractor himself/herself/itself in the fleet manager and continuously keep such information and details up to date. Reference is herewith made to the annexed exact listing of data points to be updated. Only subject to these conditions may it be safeguarded that the Commercial Agent can duly act as agent.
2.3.4 The Contractor shall furthermore provide the Commercial Agent with any information and details relating to rides that the Commercial Agent may have to know. The Contractor in particular shall notify the Commercial Agent without undue delay of partial or complete non-performance of a transaction entered into including a statement of the reasons for such non-performance, otherwise the Commercial Agent shall consider this ride to have been accepted by the Contractor.
2.3.5 Finally, the Contractor shall notify the Commercial Agent in due time about any circumstances relating to the company, business reorganisation or discontinuation of operations, vehicle changes, changes in the Contractor's drivers, too much work or the like in particular. This way, the Commercial Agent may adapt its activities as agent ideally to the respective situation prevailing. The Commercial Agent shall furthermore be notified without undue delay, however, in such due time as to prevent interference with entrepreneurial planning – enabling it to exercise its termination right in particular - of any cooperation and/or merger with other companies envisaged or intended or intentions to sell or close the business.
2.4 In the event of breach of legal, technical and/or logistical service conditions, if any, the Commercial Agent shall have the right to terminate the agreement with immediate effect without a period of notice having to be observed.
3.1 Upon conclusion of the Commercial Agency Agreement and provision of the software developed by the Commercial Agent for communication between the Contractor's respective driver and the Commercial Agent, the Commercial Agent shall grant the Contractor a non-exclusive, non-transferable licence to use the software ("Driver App") limited to the term of the Commercial Agency Agreement.
3.3 The Contractor has the right to create a back-up copy of the software that needs to be identified with a copy of the original labelling and distinctive marking and/or the copyright notice on the original data carrier. The backup copy may only be used in case of deterioration or loss of the data carrier supplied by the Commercial Agent and use of the backup copy shall also be governed by the present terms of licence.
The Contractor may not reproduce the software in any other or additional way.
3.4 The Contractor shall not have the right to use the software outside the scope of his/her/its business or for any purposes other than those agreed upon and stipulated in the Commercial Agency Agreement or permit third parties that are not part of his/her/its business to use the software or provide third parties with the software without the Commercial Agent's written consent. In this context, unless explicitly provided otherwise, the term "third parties" shall also be deemed to include business partners the Contractor is working with at regular intervals as well as companies affiliated with the Contractor.
3.5 Without the Commercial Agent's written consent, it shall not be permitted for the Contractor to process or change or convert in any other way the software, translate the software into another code, to decompile the software, to remove or modify software labelling and distinctive markings or remove any other information contained in the software and the software documentation with respect to vendor information, information on copyrights and any other industrial or intellectual property rights of the Commercial Agent.
3.6 The Commercial Agent shall warrant a 95% uptime percentage for software in relation to the overall monthly service level.
3.7 Unless otherwise agreed, the Contractor shall bear exclusive responsibility for the functionality of the hardware used by the Contractor.
4. End Customer Service Handling
4.1 Driver's Duty to Inform
4.1.1 A taxi ride shall be accepted/rejected via the Driver App.
4.1.2 In case of rental car companies, a ride shall be deemed to have been accepted by the rental car company if the rental car company has a status of 'available' (that means that a shift schedule was put in the fleet manager) at the time the ride is booked through the Commercial Agent in the fleet manager.
4.1.3 It is not permitted for contractors to pass on rides to contractors and drivers which are not part of the network.
4.1.4 The Commercial Agent must promptly be notified via the fleet manager of rides that were arranged by the Contractor himself/herself/itself and as a consequence of which the Contractor is not available for rides arranged by the Commercial Agent.
4.1.5 In the event that it were to be impossible for the Contractor to perform a ride or in the event that it were only possible for the Contractor to perform a ride with a delay, the Contractor shall notify the Commercial Agent without undue delay, however no later than twenty (20) minutes before the pick-up time concerned by actuating the respective Driver App button. In this case, the Commercial Agent shall have the right to award this ride to another driver.
4.1.6 The following shall apply in the event that the Contractor is a rental car company: in the event that it were to turn out at an early stage (i.e. more than two (2) hours prior to the pick-up time) that it will be impossible for the Contractor to perform a ride or that it would only be possible for the Contractor to perform a ride with a delay, the ride shall be offered to other contractors for acceptance via the "Talixo market" function in the fleet manager. If there are less than two (2) hours remaining before pick-up time, the ride shall be passed on to other contractors via the Driver App (see above).
4.2 Customer pick-up
The customer shall be picked up on time and duly be informed of the taxi/limousine having arrived (see Service Rules and Regulations annexed).
At airports and railway stations customers shall be picked up by drivers holding up a sign displaying the name "TALIXO".
In case of a rental car company, any parking fees that may be incurred shall be deemed to be included in the fixed price.
The driver shall verify the customer's identity before starting to drive off. The driver shall do so by comparing the customer's name and destination. In the event that the driver were to have doubts as to the customer's identity, the driver shall ask the customer to verify additional booking details (such as the booking number, telephone number).
4.4 Reporting sales revenues
4.4.1 In case of a taxi company, the driver shall be required to report to the Commercial Agent the amount of sales generated according to the taximeter via the Driver App. The 4-digit pin that the customer indicated after putting in the price of the ride as confirmation shall be used for the customer to verify this amount. In the event that the customer were to have forgotten the pin, the driver shall authenticate the taximeter price including customer name and pick-up point and destination and customer's signature on a log sheet.
4.4.2 Unless the customer objects, the Commercial Agent shall directly invoice the customers for the rides booked and performed on behalf of and for the account of the Contractor. The Contractor’s remuneration shall be processed in accordance with section 8.
4.4.3 The reasons that customers may indicate in opposition could in particular include statements such as that the ride had not been performed or only be performed incompletely or customers could raise any other serious objections such as that an incorrect price had been indicated and the like.
4.4.4 In case of a rental car company, the price shall be deemed to have been fixed (hereinafter referred to as "fixed price") before the ride starts. Such fixed price shall not be varied to the extent the ride was performed as booked.
4.4.5 It may, however, be necessary to vary the fixed price if the price charged for the ride has changed in the meantime compared to the initially agreed fixed price. Such change may occur in particular, for instance, if the customer wishes to change the destination of his/her ride or if waiting and parking time has been incurred or if any other extras need to be taken into consideration. In this case it shall be required for the Contractor to report to the Commercial Agent the nature of the change (different destination, waiting time, extras) as soon as possible by entering such information in the Driver App (in case of additional waiting time or extras) or by entering such details in the fleet manager. The changes furthermore will have to be authenticated by the customer either by the customer entering the pin or by the driver entering the change on the log sheet and the customer signing the log sheet. Sales revenue changes shall be accepted within 24 hours of the end of the ride. After this period has ended, changes shall only be accepted in exceptional cases.
4.5 Otherwise the provisions of the Commercial Agent's Service Rules and Regulations, as applicable and amended, shall be deemed to apply in supplement.
5. Changes versus Bookings
5.1 In the event that the customer were to be in delay or not show up at all, the following shall be deemed to have been agreed upon in particular between the Commercial Agent and the Contractor:
5.1.1 In case of taxi companies, the statutory provisions of the taxi fare regulations (Taxiordnung) shall apply. The driver/Contractor shall be required to notify the customer if the customer failed to show up at the pick-up point on time. In the event that it were to be impossible to reach the customer, the driver/Contractor may at his/her discretion leave the pick-up point after the defined minimum waiting time has expired. The driver/Contractor, however, shall be required to notify the Commercial Agent thereof via the Driver App (see below). In the event of the customer's failure to show up, the customer shall be charged the initial fee plus minimum waiting time that the driver/Contractor is entitled to, after deduction of the Commercial Agent's commission.
5.1.2 The following shall be deemed to have been agreed upon with respect to rental car companies:
- Delays of up to the waiting time granted shall be deemed to be included in the service. The waiting time granted depends on the booking category concerned and shall be defined in the Service Rules and Regulations.
- After the granted waiting time has been exceeded, the rental car operator may charge the customer the waiting time costs determined by him/her/it.
- The rental car driver / operator shall be required to wait for the customer at the pick-up point until the minimum waiting period has expired. After the minimum waiting period has expired, the Contractor/driver may at his/her own discretion either wait for the customer or leave. In the event that the Contractor/driver has opted to leave, the Contractor/driver shall be required to notify the Commercial Agent thereof by actuating the "no show" button on the Driver App.
- In case the driver does not appear at least 5 (five) minutes before the pickup time and/or does not stay during the entire waiting time at the pick-up point and the passenger does not appear (no-show), the driver is not entitled to receive the no-show fee
- In case the customer has failed to show up, the pre-booked fixed price may be charged to the customer as a maximum, no matter how much additional waiting time costs had actually been incurred.
The Contractor/driver must furnish proof of waiting time incurred by reporting waiting time to the Commercial Agent via the Driver App or the log sheet. In the event that neither of the two means of evidence were to be available, the Commercial Agent and the customer shall have the right to deny the waiting time.
5.2 In the event that the driver were to be in delay and fail to report this to the Commercial Agent or were only report it to the Commercial Agent too late (less than twenty (20) minutes prior to the pick-up time remaining), the following shall be deemed to have been agreed upon between the Commercial Agent and the Contractor in addition to the provisions according to Section 4.1.6:
5.2.1 The driver shall have the duty to contact the customer promptly in case of a delay. In the event that the driver were to be in delay or fail to show up, this shall have significant implications on the driver’s rating.
5.2.2 The Commercial Agent has decided to currently refrain from imposing special commissions on drivers for delays. The Commercial Agent, however, reserves the right to impose upon the Contractor special fees for driver delays.
5.3 In case the ride is being performed by a taxi company, the driver needs to make sure, when changing the route, that follow up rides, if any, that may, if applicable, no longer be performed by the Contractor/driver on time as a result of changing the route of the current ride are passed on to other Contractors or drivers in time (see section 4.1.5). As usual, the taximeter price will have to be entered in the Driver App after the ride and will have to be verified by the customer. Otherwise reference is made to the provisions of section 4.4.1 regarding sales revenue reporting.
5.4 In case of rides by rental car, routes may only be changed during the ride or after the ride has already commenced in consultation with the driver. Furthermore, the driver will have to make sure (for the purpose of subsequent fare collection) that the new transport details (the new destination in particular) are entered in the fleet manager. Otherwise reference is made to the provisions of section 4.4.5 regarding sales revenue reporting.
6.1 Taxi Companies
6.1.2 If the Company is a taxi company, the statutory taxi fare regulations (Taxitarifordnung), as applicable and amended at the time, shall form the basis of calculation of the fare payable for such ride to such companies.
6.1.3 The fare payable in the respective area of application of the taxi fare regulations (Taxi-Tarifordnung) in particular shall be governed by the taximeter fare plus additional surcharges payable in accordance with the fare regulations.
6.2 Rental Car Companies
6.2.1 If the Company is a rental car company, the fixed price quoted and accepted, as applicable, shall form the basis of calculation of the fare payable for such ride to such companies.
The fare/ fixed price in particular shall be based on the respective distance to be covered by the ride subject of the inquiry and the booking time. This fixed price shall be based on the price profile entered in the fleet manager and it shall be considered to be a complete price that covers and comprises any extra costs (such as toll charges, parking fees and the like in particular) that may be incurred.
6.2.2 Otherwise the Commercial Agent reserves the right to arrange rides for the customer on behalf of and for the account of the contractors depending on the user category with prices varying according to the service standard. These user categories have been defined in more detail in the Service Rules and Regulations.
7. Collection/Assignment of Claim
7.1 The Contractor hereby assigns any and all claims for payment of its rides booked, performed and confirmed by the passenger according to section 4.4.1 by using the Driver App against its clients to the Commercial Agent which hereby explicitly accepts such assignment of claims resulting from rides and/or courier services booked and performed by using the Driver App.
7.2 The Commercial Agent assumes the liability for the non-performance of claims for payment duly assigned to him by the Contractor (del credere liability). The Commercial Agent is responsible for the collection of the claims assigned to him.
7.3 The Contractor shall be responsible for the existence of the assigned claims.
8. Remuneration Contractor/Commercial Agent
8.1 The Contractors shall pay a booking commission to the Commercial Agent based on the agreed logic in return for the comprehensive service being rendered by the Commercial Agent. The booking commission shall be deducted from and offset against the Contractor’s remuneration to be paid by the Commercial Agent to the Contractor. This means that the Contractor will be paid the fare minus the booking commission incurred. For calculation of the amount of the booking commission payable, please consult the applicable price regime, as amended at the time. Statutory value-added tax shall be deemed to be included in fees and charges.
8.2 The Commercial Agent undertakes to submit to the Contractors an account statement containing the value of rides booked and performed by the Contractor in the preceeding month less the net commissions and user fees by the beginning of (for the preceeding month) and the ides of (for the actual month) each month. Within five (5) business days following the communication of such account statement, the Commercial Agent shall disburse the balance resulting from the nominal value of the assigned claims and the commissions and further fees to the Contractor.
8.3 The account statement to be submitted by the Commercial Agent shall include (i) the invoices issued by the Commercial Agent with respect to services rendered by the Contractor (outgoing invoices of the Contractor) and (ii) commissions and further charges to be paid to the Commercial Agent (ingoing invoices of the Contractor) separately, duly taking into account the applicable tax rates.
8.4 The Contractor shall process the account statements to be submitted by the Commercial Agent for the purposes of his/her/its own reports and accounts and retain such statements in accordance with the applicable law.
8.5 The Contractor shall exclusively be responsible for the declaration and the payment of value-added tax generated by the Contractor. The Commercial Agent will not pay any value-added tax owed by the Contractor.
9. Rating System
9.1 The Contractor consents to the Commercial Agent establishing a transport service rating system (which may be inspected by prospective passengers) in which customers given a ride are giving the transportation service rendered by contractors a rating, the service rendered by the driver in person and the driver's car in particular. Ratings given by passengers must be fact-based.
9.2 In addition to the customer rating, the Contractor consents to factors like driver's punctuality, reliability and disposition being taken into account in the Commercial Agent‘s internal rating system. Otherwise, in this context, reference is made to the contractually agreed Service Rules and Regulations.
9.3 The Commercial Agent's extended driver ratings shall be treated with confidence and may only be inspected by the Contractor.
10. Data Protection
10.1 Personal details and data (forms of address, name, address, e-mail address, telephone number, facsimile number, banking details, locations) shall be processed exclusively in accordance with the provisions of the German data protection laws (telemedia acts and Federal German Data Protection Act).
10.2 Such personal data and details, to the extent required for providing a statement of reasons, defining the contents or changing the contractual relationship (inventory data) shall exclusively be used for managing contracts concluded.
10.3 The Contractor consents to his/her/its respective location and positioning being published (based on GPS data) and data being used by the Commercial Agent for identifying and positioning the Contractor. The customer shall furthermore be informed of the name of the Contractor, the first and last name, telephone number and number plate of the Contractor.
10.4 Inventory data may only subject to the Contractor's explicit consent be used for other purposes such as advertising, market research or preparing customised offers. The Contractor may give his/her/its consent prior to registration. Such declaration of consent shall be provided on a voluntary basis and may be revoked by the Contractor at any time in text format.
10.5 Personal data and details required so as to make it possible for customers to avail themselves of and pay for the Contractor's services (usage data) shall initially also exclusively be used for managing contracts concluded. Such usage data shall include but not be limited to characteristics identifying the Contractor as a user, information on the time a ride begins and ends, the scope of respective use and details on the telemedia used by the user.
10.6 The Contractor consents to usage data, for preparing user profiles based on pseudonyms, also being used for advertising, market research or customised telemedia design purposes. The Contractor may at any time object to use of usage data. User profiles shall not at any case be linked to the respective data.
10.7 The Contractor consents to his/her/its identification data and GPS data on his/her respective location being disclosed to the Commercial Agent whilst the Contractor has activated the application. The Contractor consents to his/her/its data being passed on to the respective contractors for the purpose of performance of the contract and/or for court action being taken to enforce legal claims.
10.8 Please contact us via the www.talixo.de website if you would like to receive additional information or if you wish to call up or revoke the consent to use of inventory data granted and/or object to use of usage data.
11.1 Except for liability under the product liability act and liability for loss of life, personal injury or health damage, the following limitations of liability shall apply and the Commercial Agent's liability shall be excluded in the following cases:
11.1.1 The Commercial Agent's liability in case of negligence shall be limited to indemnification against the loss or damage typically foreseeable. The Commercial Agent shall, however, only be liable for simple negligence in the event that the Commercial Agent has committed a breach of duty adherence to which the Contractor may rely on and the fulfilment of which constitutes a very precondition for duly performing the contract which includes but is not limited to duly making use of the booking platform in an economically feasible manner with the parties' interests duly being taken into consideration.
11.1.2 The limitations stated above shall also apply for the benefit of legal representatives and vicarious agents (Erfüllungsgehilfen) of the Commercial Agent in case claims have been asserted against them directly.
11.1.3 The Commercial Agent shall neither assume any liability for the correctness or completeness of the information received by the Commercial Agent and subsequently passed on by the Commercial Agent in a timely fashion and in an unmodified form or for the punctual receipt of information (that had been transmitted to the Commercial Agent and had subsequently been passed on by the Commercial Agent in a timely fashion and in an unmodified form) by the Contractor and/or the customer. The Commercial Agent shall not be liable for the Contractor’s loss of data because the duty to duly make back-ups regularly forms part of the Contractor's scope of duties.
11.2 To the extent third parties have asserted claims against the Commercial Agent, the Contractor shall have the duty to notify the Commercial Agent of comprehensive information in a timely fashion regardless of whether such information is required for the purposes of review or defence.
11.3 If the Contractor can be held accountable for an infringement of a right, the Contractor shall indemnify the Commercial Agent against liability existing vis-à-vis third parties as well as the reasonable costs incurred for legal defence. In case of a culpable breach, the Contractor shall also have the duty to indemnify the Commercial Agent against loss or damage incurred.
12. Non-competition Covenant
The Contractor shall not entice customers acquired by the Commercial Agent away from the Commercial Agent and make use of the contact with the customer established by the Commercial Agent by concluding contracts with the customer outside the scope of the Commercial Agency Agreement and keeping the Commercial Agent ignorant about it. In the event that the Contractor were to act in violation of such non-competition covenant, the Commercial Agent shall have the right to terminate this agreement with immediate effect without a period of notice having to be observed. The Commercial Agent explicitly reserves the right to assert claims for damages, if any, against the Contractor. Otherwise reference is made to liability provisions contained in section 11.
13. Confidentiality Obligation
13.1 The Company undertakes to keep the Commercial Agent's business and trade secrets secret and keep the documents relating to this and the commercial agency relationship safe so as to prevent third parties from accessing them. The duty of the Company to keep any knowledge and information acquired with respect to business transactions and internal affairs, confidential affairs in particular, secret shall also survive termination of the agreement.
13.2 Personal data and details relating to other parties involved that were transmitted to the Contractor or that have been disclosed to the Contractor or that the Contractor may become aware of in any other way shall not be processed by the Company and shall not be passed on to outside third parties unless the other party involved has given its consent.
13.3 The term "confidential customer information" in this agreement shall be deemed to relate to any information on other parties (Talixo customers) collected in the context of the contractual relationship maintained with the Commercial Agent. In addition to customer data (see above), this term is also deemed to include information that may have been collected during the ride by overhearing conversations of passengers.
13.4 During and after termination of the contractual relationship maintained with the Commercial Agent, the Contractor undertakes to treat "confidential customer information" with strict confidence and to refrain from disclosing such information to third parties. The Contractor in particular shall make sure that his/her/its employees shall also treat "confidential customer information" with strict confidence and refrain from disclosing the information to third parties.
In case of breach of this duty, the Commercial Agent reserves the right to assert claims for damages on behalf of the other party involved.
14. Contractual Penalty
14.1 In the event that the Contractor deliberately or negligently were to breach the non-competition covenant and/or confidentiality obligation according to sections 12 and 13, the Contractor shall be required to pay a contractual penalty totalling EUR 1’000.00 for every case of breach up to a maximum of 3 times the gross monthly passenger transportation income. In the event that the monthly income were to vary, the gross monthly income shall be calculated as the average of monthly earnings from passenger transportation generated over the previous twelve (12) months or the respective number of previous months (if less than 12 months of earnings were generated).
14.2 If a deliberate or negligent breach of the non-competition covenant governed by section 12 has been committed by the Contractor, the Contractor shall have the duty to disclose to the Commercial Agent to this end any income that he/she/it generated based on the Commercial Agent's agency services over the relevant period.