TITLE
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terms and
conditions
General Terms and Conditions of 1NCE GmbH for M2M/IoT mobile communications services (version as of 07/2018)
1. Scope of application
1.1 The following General Terms and Conditions (hereinafter referred to as
“GTC”) shall govern any and all contracts relating to the provision of
mobile communications services for machine-to-machine (M2M) and
Internet of Things (IoT) applications and related services (hereinafter
altogether referred to as the “Services”) concluded between 1NCE
GmbH, Sternengasse 14-16, 50676 Cologne, Germany, Local Court
of Cologne, HRB 92529 (hereinafter referred to as “1NCE”) and the
Customer.
1.2 The provision of the Services by 1NCE shall be carried out exclusively
under the application of these GTC. The application of any terms and
conditions of the Customer which contradict or deviate from these GTC
is excluded.
1.3 The offer of the Services through 1NCE is addressed exclusively to
businesses within the meaning of Section 14 of the German Civil Code
(Bürgerliches Gesetzbuch, hereinafter referred to as “BGB”).
2. Conclusion of contract
2.1 The offers made by 1NCE regarding the provision of the Services are
non-binding. Such offers do not constitute a binding offer to conclude
a contract, but merely a request for the submission of an order by the
Customer in accordance with 1NCE’s offer.
2.2 As a general rule, the Customer places its order via the 1NCE web
shop. However, 1NCE reserves the right, in individual cases, to also
allow the Customer, upon a request of the Customer declared in text
form, to submit a completed and signed order form to 1NCE; however,
the Customer is not entitled to claim such form of ordering. With its
order, the Customer submits a binding offer to conclude a contract.
2.3 The Customer undertakes to only provide true and correct information
in the context of its order. In particular, the Customer shall ensure that
the Customer’s billing address indicated by the Customer corresponds
to the address for which the Customer has been assigned the stated
VAT identifi cation number. Furthermore, the Customer undertakes to
provide to 1NCE in connection with the order all documents required
in accordance with Section 111 para. 1 sentence 3 of the German
Telecommunications Act (hereinafter referred to as “TKG”) or – if
offered by 1NCE – to participate in any other identity verifi cation
procedure suitable in accordance with Section 111 para. 1 sentence
4 TKG; this obligation applies accordingly in the event that a change
occurs with regard to the data provided by the Customer before or after
the conclusion of the contract (Section 111 para. 3 TKG).
2.4 A contract is only concluded when 1NCE accepts the Customer’s
order by issuing an order confi rmation or at the latest when 1NCE
commences with the performance of the Services (i.e. activation of the
Chip Card).
2.5 Text form is suffi cient for all declarations of the Parties referred to in
this Section 2.
3. 1NCE’s performance obligations / Right to modify
3.1 The Services include the following service elements:
a) the provision of access to mobile communication for M2M/IoT
applications with which the Customer can use low-bandwidth
mobile data connections and additional network services as
well as other related services – this is done through derivative
allocation of a mobile number and an additional identifi cation
number (e.g. International Mobile Subscriber Identity [IMSI],
Mobile Subscriber Integrated Services Digital Network Number
[MSISDN], Integrated Circuit Card Identifi er [ICCID]) as well as
the provision of a chip card encoded with the allocated number,
currently in the form of a SIM card (in these GTC in each case
referred to as the “Chip Card”) to the Customer;
b) the provision of low-bandwidth mobile data communications
services in the Federal Republic of Germany and – where
available on the basis of existing roaming agreements between
the relevant mobile network operators – in certain other EU
Member States or third countries specifi ed in the Service
Description; and
c) the provision of additional network services and other related
services, in particular including the possibility of receiving and
sending SMS (Short Message Service) messages and the
provision of a software-based connectivity management platform;
1NCE shall provide the Customer with access to this platform
either via a customer web portal or – provided that the Customer
ensures full compatibility of its Customer systems within its sphere
of responsibility – such access may be integrated by the Customer
itself at its own expense into these Customer systems by using
1NCE’s application programming interfaces (APIs).
The exact scope of the Services in accordance with this Section 3.1
shall be determined in each case by the service description attached to
these GTC as an Annex (in these GTC in each case referred to as the
“Service Description”).
3.2 1NCE performs the Services within the boundaries of its technical and
operational capabilities. The mobile communications services referred
to in Section 3.1 lit. a) and b) of these GTC are provided by 1NCE
on thework operators. 1NCE also uses subcontractors as technical
service providers for the provision of individual parts of the additional
network services and other related services referred to in Section
3.1 lit. c) of these GTC. 1NCE expressly points out that the type and
scope of such services of the respective mobile network operators,
in particular also the respective available transmission technologies
(e.g. no permanent use of 2G/3G in individual countries), may vary
and, in addition, individual available transmission technologies may not
enable the use of certain network services or other related services.
The details of the actually available scope of Services is set out in the
Service Description.
3.3 1NCE’s obligation to perform is limited
a) to the activation period of the Chip Card in accordance with
Section 3.5 of these GTC (hereinafter referred to as the “Activation
Period”);
b) to a consumable data volume of 500 MB per Chip Card; and
c) a volume of 250 SMS per Chip Card, in which case a pro rata
consumption of this volume takes place both by each SMS
received (Mobile terminated MT) and each SMS sent (Mobile
Originated - MO) and 1NCE further expressly points out that the
technical solution used by 1NCE only supports SMS transmissions
between terminal device and server (both traffi c directions), but
not SMS transmissions between two terminal devices (the data
volume referred to in lit. b) and the SMS volume referred to in
lit. c), unless otherwise indicated, are hereinafter referred to
individually and together as the “Quota” or the “Quotas”.
The Customer is entitled at any time to purchase additional Quotas for
the relevant Chip Card once or several times (see Sections 5.1 and
5.3 of these GTC); this can already take place before the complete use
of an original Quota. The Activation Period of the relevant Chip Card
as such remains unaffected by the subsequent purchase of additional
Quotas.
3.4 If one of the original Quotas (data volume or SMS volume) or another
Quota subsequently purchased by the Customer is used up before
the end of the Activation Period, the Chip Card will be temporarily
deactivated and can no longer be used until further notice. Upon
receipt of payment of the charge for a Quota subsequently purchased
by the Customer, any temporarily deactivated Chip Card will be
immediately reactivated by 1NCE. Additional Quotas can only be
purchased in such a way that both a full data volume and a full SMS
volume are purchased at the same time in accordance with Sections
3.3 sentence 1 lit. b) and c) of these GTC.
3.5 The Activation Period for the respective Chip Card is ten years from the
beginning of the fourth calendar month following the calendar month
in which 1NCE dispatches the Chip Card to the Customer, unless the
Activation Period ends earlier in accordance with Section 3.6 of these
GTC or is extended by mutual agreement between the Parties in text
form based on the then current terms. The initial activation of the Chip
Card takes place before the Chip Card is sent to the Customer; the
Chip Card can therefore be used from the moment of receipt through
the Customer.
3.6 The Activation Period automatically ends early if
a) within 18 months after 1NCE has notifi ed the Customer in text
form that the data volume or the SMS volume of the relevant Chip
Card has been used up before the end of the Activation Period,
the Customer has not subsequently purchased an additional
Quota;
b) no data has been sent or no SMS has been received or sent
by the relevant Chip Card for a continuous period of at least 18
months; or
c) the Customer has fi nally deactivated the relevant Chip Card within
the connectivity management platform provided by 1NCE.
3.7 The Chip Card is provided to the Customer as a sale; the Chip Card
therefore becomes the Customer’s property when it is handed over to
the Customer. The right of 1NCE (a) to deactivate or block the Chip
Card or (b) to make designated confi guration changes to the Chip
Card or to download and install software updates on the Chip Card
by OTA (Over the Air) remote control for the purpose of continued
service provision, as part of the Services and in accordance with the
provisions of these GTC, shall remain unaffected and shall continue
for the entire term of the contract. From the time of transfer of risk, the
Customer bears the risk of accidental loss or accidental deterioration
of the Chip Card. In particular, 1NCE is therefore not obliged to replace
a Chip Card that has been lost or damaged or rendered unusable due
to circumstances not attributable to 1NCE. All Quotas are also linked
to the use of the specifi c Chip Card provided. Therefore, in the case of
sentence 4, 1NCE is not obliged to transfer any remaining Quota that
cannot be used anymore to another Chip Card or to make any other
reimbursement to that effect.
3.8 The transfer of risk with regard to the Chip Card shall take place in
accordance with Section 447 para. 1 BGB. Unless otherwise agreed
between the Parties in text form, CIP Incoterms® 2010 shall apply
when sending Chip Cards to delivery addresses of the Customer
outside the Federal Republic of Germany.
3.9 To the extent 1NCE is liable for defects with regard to individual
elements of the Services under statutory warranty provisions
(Mängelhaftung), this liability shall be governed by the applicable
provisions of statutory law. In particular, the prescription period relating
to claims for defects in respect of Chip Cards shall begin from the time
