1 General
wherever SIM GmbH
Großer Burstah 25
20457 Hamburg
Germany
(hereinafter wherever SIM, and/or 'We', 'Our' and similar) offers its services on the basis of the following General Terms and Conditions (hereinafter: GTC) to the customer as specified in the relevant order form and/or by accessing the wherever SIM IoT customer portal (hereinafter: "Customer" and/or "Your", "Your" and similar). Any changes to the wherever SIM price list as well as the service description will be communicated by wherever SIM at regular intervals. The current status of the supported network infrastructure providers in the individual tariffs can be viewed at https://whereversim.de/de.
All subsequent orders are subject to the current and applicable GTC at the time. Individual agreements deviating from these GTC are subject to our prior written consent.
Should individual provisions of these GTC, the order form or the service description contradict each other, the following order of precedence shall be used to clarify the contradictions:
These Terms apply exclusively. Your terms of business/procurement terms are not binding to any business relation with us. This is applicable even if we do not expressly contradict your terms of business/procurement terms. Legally binding contractual basis is only the German version of this terms and conditions. These English terms & conditions are for information purpose only. Solely our German terms & conditions (AGB) are legally binding.
2. Services provided by wherever SIM, Offers and Orders
The wherever SIM services are provided to Enterprise Customers only.
wherever SIM provides telecommunication services in the area of mobile communication directly or indirectly by the help of carefully chosen partners. Furthermore, specifically wherever SIM supplies Internet of Things (hereinafter: “IoT”) SIM cards, and furthermore Mobile Systems Services relating to GSM – and UMTS data transfer and, via the wherever SIM IoT Enterprise Portal, monitoring and administration capabilities for mobile IoT communication. Generally, the Customer shall note that suitable, ready for use end devices and a suitable SIM card are the prerequisite for the use of the services offered by us.
The wherever SIM services serve the implementation of IT-, mobile radio network-based communication between distributed systems (such as vehicles, machines, electricity meters, etc.) and central control stations (e.g. communication hubs) as well as remote-controlled operation of devices for purposes of monitoring, measurement, meter reading and control (referred to as “IoT System Services”) by the Customer. These include application scenarios in the field of human-to-machine and machine-to-human communication, e.g. the control of systems by a service technician with his mobile device.
Public telecommunications services, such as Short Message Service (hereinafter: “SMS”) to any telephone number, voice communication to any telephone number as well as the further dissemination of voice calls, use as voicemail service or the use of value-added services (Other Open Communications Services) are not part of wherever SIMs standard Services and use of Other Telecommunications Services are regulated by a separate section of this Agreement.
Because wherever SIM has no own cellular radio network, it acquires the network services from Network Infrastructure Suppliers (for example, a mobile network operator) directly or indirectly with the help of carefully chosen partners, domestically and abroad (hereinafter: Network Infrastructure Provider). The selection of Network Infrastructure Providers including the change of the Network Infrastructure Provider during the contract period is at the discretion of wherever SIM or its chosen partners. The Customer is entitled to network services in selected countries within the framework of the chosen Pricing, as agreed between the parties.
Our services are geographically limited to the reception and transmission of the network operated by Network Infrastructure Providers. While we and our partners constantly aim to select the strongest network available in each country within our framework of agreements with Network Infrastructure Provider, the Customer accepts that the wherever SIM services are subject to the current state of technology with its limitations, including geographical limitations, and hence that the wherever SIM services may not be available everywhere at all times. Consequently the wherever SIM services are subject to restrictions caused by technical circumstances not within our control. Any claims by Customer, including but not limited to damages and recourse caused by the lack of a complete nationwide network availability are therefore excluded (cf. clause 12 below).
The wherever SIM Portal enables the Customer to set up data usage limits separately for each individual SIM card or for all SIM cards at once. wherever SIM shall therefore not provide any of the services described as ‘Bill Shock Prevention’ or personalized Pricing Information SMS in accordance with EU Regulation 544 / 2009, unless this has been specifically agreed in writing with wherever SIM.
The scope of these services depends on the most current version of the Service Description in connection with the services ordered by the Customer and accepted by us. wherever SIM reserves the right to adjust the scope of these services at any time and to add functionality or, in rare cases, particularly in the event of abuse, reduce functionalities. The Customer acknowledges and agrees that this agreement and any order of a service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by wherever SIM regarding future functionality or features.
When placing an Order Form (hereinafter also: “Order”), the contracting company must always state their VAT and/or company registration number and details. Our offers are non-binding with regard to price, quantity, delivery time and availability. The orders issued to us are only accepted if issued through the Order Form and confirmed by us in writing, usually by email.
3. Contract Term, Termination
After customer fills out the Order Form made available by wherever SIM for this purpose and submits it either online, or by email, sends it by mail or courier to wherever SIM, the agreement commences when wherever SIM sends its acceptance by email to the Customer’s email address, as indicated in the Order Form. Such date of acceptance also determines the starting date of the agreement’s duration, as defined in the Order Form.
The agreement’s term is dependent on the Pricing chosen by the Customer. A minimum agreement term can arise in case of adding or activating of Pricing in line with the specific Pricing conditions as described in the Pricing Schedule. Pricing changes, adding services and/or Pricings by the Customer, even during the term, can extend the term of the contract or shorten it, if agreed in the respective Order Form. These changed terms are listed in the respective Order Form in conjunction with the chosen Pricing and come into force, following the Customer’s submission of the relevant Order Form and its acceptance by wherever SIM in writing.
Generally, the agreement term following acceptance of an Order Form by wherever SIM will be one (1) month initially and thereafter extended for one (1) more month, unless the Order is terminated by giving thirty (30) months prior written notice to the end of the month by either of the parties. Details are specified in the Order Forms as accepted by wherever SIM.
The parties are entitled to terminate an Order Form with immediate effect upon notice in writing to the other party, if the other party commits material breach of the agreement and fails to remedy such breach within thirty (30) days of receipt of a written notice giving full particulars of such material breach requesting that it be remedied.
Termination notices shall be given in writing, i.e. by letter, email or fax. Services are provided until the last day of a contractual term and the Customer is obliged to pay all fees charges incurred until that time.
4. Use of the services by Customer
Upon acceptance of the Order Form, the Customer shall be enabled to use the services provided by wherever SIM as specified in the Order Form, in particular the allocation of SIM cards, the provision of mobile services pertaining to the transmission of GSM and UMTS data, the use of the wherever SIM API and the wherever SIM Portal for the monitoring and the administration of mobile services for IoT communication.
4.1 In regards to the allocation and use of the SIM card(s), the following applies:
Obligations of the Customer:
4.2 In regards to the provision of Telecom- munications Services (IoT System Services), the following regulations apply:
The availability of network connectivity in certain countries and regions derives from the wherever SIM Price Book in its then most current version in connection with the services ordered by the Customer and accepted by wherever SIM.
The use of services that go beyond the provision of IoT System Services requires approval by wherever SIM and must be agreed in writing.
4.3 With regard to the provision of the wherever SIM API and the wherever SIM IoT Enterprise Portal the following provisions apply:
The Customer is responsible for the technical setup and integration into existing systems at his end. The implementation shall be in accordance with the API specifications and policies (in particular ‘wherever SIM RestAPI specification’) provided by us and/or our partners.
The Customer is also solely responsible for the security of hardware, data, as well as the access data, which he requires for the access to the wherever SIM Portal.
5. Suspension
Without prejudice to other legal provisions, wherever SIM is entitled to suspend wholly or partly the use of its services (in the following ‘Suspension’) in case of but not limited to:
Despite a Service Suspension, the Customer remains obliged to pay fixed and any usage based charges, in particular monthly fees, minimum fees, etc.
6. Prices and Invoicing
All given prices are net of freight, packaging and ancillary costs, such as customs and import duties, where applicable. The, at any given time, applicable statutory Value Added Tax (“VAT”) will be charged in addition. In the case of significant changes of the factors that determine the price, we reserve the right to adjust our pricing upon 10 days prior written notice, thereafter Customer is entitled to terminate the respective Order Form within fourteen (14) days by giving two (2) months written notice. In case of termination of the contract according to the regulations set above, the prices remain on the level before the price adjustment for the remaining contract period.
For the provision of SIM cards, we issue an invoice when we accept your Order. The amount is payable immediately within five (5) days after the date of the invoice. The SIM cards can be activated by Customer himself at any time via the wherever SIM Portal after wherever SIM’s receipt of the payment. For activation, you will receive a confirmation via the wherever SIM API (as far as this has been setup correctly by you) or via the wherever SIM Portal.
Agreed monthly fees or minimum fees are invoiced monthly. These fees are also payable immediately within ten (10) days after the date of the invoice.
Variable charges, in particular agreed usage fees will be charged to you within five working days after the end of the billing month. Such charges and/or fees are usually payable within ten (10) days after the date of the invoice.
We send invoices to the Customer by email in Portable Document Format (“PDF”), for which Customer shall entertain a valid reader license.
7. Provision of SIM Cards, Delivery Times
If not agreed differently in writing between the Parties, wherever SIM provides the SIM cards required for the use of wherever SIM services.
wherever SIM strives to meet the delivery dates we have communicated to you for the provision of SIM cards. However, as we are dependent on the timely delivery of our third-party partners, we assume no liability for any deviation from the communicated delivery dates. In case of any delay, the Customer grants wherever SIM a grace period of at least three (3) weeks to remedy the delay. The Customer may terminate the relevant Order Form after expiry of such grace period by providing written notice. Damages for non-fulfilment are excluded also after expiry of the grace period, except if otherwise arising from this agreement.
Partial deliveries are to be accepted by Customer.
wherever SIM is entitled to withdraw from the agreement, if SIM cards ordered by Customer become unavailable on the market. The SIM cards delivered by wherever SIM to Customer may deviate from the ordered SIM cards as long as the deviations are of technical nature and the changes do not represent a significant deviation from the functionalities specified in the Order Form or applicable documents and/or do not represent a significant deviation from the usability. In the case where replacement products are technically more advanced than the SIM cards specified in the Order Form, wherever SIM is entitled to adjust the price upon its reasonable discretion. Such price increase shall be communicated to the customer in advance, in writing. The Customer may terminate the relevant Order Form within seven (7) days in writing after the receipt of such notice from wherever SIM. If he does not, the new price is deemed to be accepted. wherever SIM excludes any claims for damages due to non-performance, if Customer makes use of his right to cancel any Order Form.
The delivery time shall be extended, also in the case of force majeure (cf. clause 14 a) below) and any unforeseen obstacles which occur after the completion of an Order and its acceptance by us, if such obstacles are outside our control and have a considerable influence on the delivery of the SIM cards. This regulation extension of the delivery time also applies, if such unforeseeable circumstances impact wherever SIM’s suppliers and their sub-suppliers. wherever SIM will promptly communicate the beginning and end of such extension of the delivery time to the Customer without undue delay. The Customer may in writing require wherever SIM to declare, whether wherever SIM chooses to cancel the acceptance of the Order Form or whether wherever SIM will deliver within an appropriately extended period. In the case that wherever SIM does not provide a delivery date within reasonable time, the Customer may cancel the respective Order Form. In such case, the Customer remains obliged to pay for any services already rendered by wherever SIM. All further claims and entitlements of the Customer are excluded. However, wherever SIM will reimburse to Customer any surplus payments made.
The Customer is responsible for all other hardware necessary to provide the services.
8. Shipping
If you have requested shipping of the SIM cards, the risk of accidental loss or deterioration of the SIM card passes to the Customer at the moment of the dispatch of the SIM card to the Customer, but no later than the SIM cards leaving the premises of wherever SIM or its external service providers. This applies even if shipping or packaging-free delivery has been agreed between the parties. Carriage of all shipments – including any returns – is solely at the Customer’s risk.
9. Acceptance of SIM Cards, Claims for Damages
The Customer undertakes to accept the provided SIM card and verify the nature of SIM cards is in line with the order. We refer to clause 7 of these Terms. In case that Customer unjustifiably declines the acceptance of the SIM Cards, wherever SIM may set in writing a grace period of fourteen (14) days to the Customer (hereinafter: Grace Period), during which he has to accept the SIM cards. If the Customer refuses the acceptance after expiry of the Grace Period or Customer previously expressly stated not to accept the SIM cards, wherever SIM can withdraw from the order and claim damages for non-performance. In this case, wherever SIM is entitled to claim, without prejudice to the possibility that the claim may be higher, 30% of the net goods value as compensation. In this case, the evidence of damages is not required for wherever SIM. The Customer may provide proof that the damages are below the lump percentage of 30%.
Foregoing also applies if the Customer withdraws without justification from an order or the agreement.
In case of justifiable defects notified in due time by the Customer, wherever SIM can either choose between rectifying the defects or to replacement. Customer has to request such supplementary performance in writing. wherever SIM is to be granted with a delay of four (4) weeks for such supplementary performance. If wherever SIM chooses to rectify the defects, a failure of such rectification is only given after wherever SIM failed two (2) consecutive times in rectifying the defect. If the supplementary performance fails, the Customer can either reasonably reduce the price or withdraw from the order. Statutory cases of dispensability of deadlines shall remain unaffected.
10. Payment, Retention Right, Security Payments and Bank Guarantee, Disputes
wherever SIM’s services are generally pre-paid. Invoices or any notification of advance payments are, unless otherwise agreed in writing payable upon receipt and without deduction. Payments via wire transfer have to be made in Euro to the following bank account:
Receiver: wherever SIM GmbH
IBAN: DE43 2007 0024 0348 7246 00
BIC: DEUTDEDBHAM
Bank name: Deutsche Bank PGK Hamburg
We may withhold our services until the full invoiced amount is received, and we will monitor our bank accounts and credit card facility for incoming payments with all reasonable effort. Any applicable bank charges are to be born by the Customer.
In case of late payments and/or default payments, we are entitled to charge default interest in the amount of eight percent (8%) above the applicable base interest rate p. a. We reserve the right to claim a higher damage caused by the default. Customer is only entitled set-off against our claims with undisputed or legally established counterclaims. Payments are only permissible to the accounts specified by us. This also applies if the customer is in default with its performance obligation under an order, Pricing Schedule or this agreement. In this case, wherever SIM is also entitled to withhold further services or to make delivery of services dependent on the Customer providing reasonable securities. If the Customer does not fulfil such reasonable demands, wherever SIM is entitled to set a deadline of two (2) weeks by written declaration and to claim damages for non-performance after fruitless expiration of the deadline instead of performance. At this point, we will also have the right to terminate the agreement with immediate effect in writing.
In case of defective services the Customer is not entitled to retain payments, unless the service is obviously defective and/or Customer is obviously entitled to retain acceptance of the services. In such case, the Customer is only entitled to retain payments in a reasonable amount equaling in an adequate proportion the defects and the prospective costs of a supplementary performance (especially of the correction of the defects). The Customer is not entitled to any claims and rights for any defects, if he has not made due payments and to the extent that the due amount (including any payments already made) reflects an appropriate relationship to the value to the service containing the deficiency.
In case, Customer chooses to post-pay for our services, we can request upon our discretion the Customer to provide payment securities in order to secure due and future payments using one or more of the following methods:
A) Credit Limit
We may provide you with an initial Credit Limit amount (hereinafter: “Credit Limit”) and we will notify you of this in writing. We may change the Credit Limit under this agreement any time, meaning we have the right, at any time, to increase or decrease the Credit Limit by giving twenty-four (24) hours prior written notice. We will send you this notice by e-mail notification.
For the sake of clarity, we may suspend the service if the Credit Limit is exhausted, meaning that the sum of (i) the total invoiced amounts, which remain unpaid, plus (ii) the unbilled but accrued usage across all orders, has exceeded the then current Credit Limit. We reserve the right to immediately suspend the service without prior notice (cf. section 5).
B) Bank Guarantee
Notwithstanding the fact that we may agree to waive our right to initially obtain issuance of a bank guarantee from you, if your financial circumstances or payment history become unacceptable in our reasonable business judgment, we may, in our sole discretion, require additional security for payments due hereunder in the form of a deposit or bank guarantee. Failure to provide additional security for payments as requested shall give wherever SIM the right to suspend the service.
In order to guarantee the performance of your obligations, we may ask you to subscribe to an irrevocable and unconditional bank guarantee of a reputable bank to be reasonably accepted by wherever SIM upon first demand in our favor.
TThe bank guarantee must be subscribed or increased prior to the commencement of the service and necessary evidence is to be submitted to wherever SIM. The amount and currency of the unconditional and irrevocable bank guarantee upon first demand will be specified in wherever SIM’s acceptance email following your submission of an order requesting post-paid services.
We agree that if the sum of (i) the total invoiced amounts which remain unpaid, plus (ii) the unbilled but accrued usage are no longer covered by the above mentioned unconditional irrevocable bank guarantee, we may notify you in writing of one or more of the following financial modalities or combination of modalities we request you to implement, along with the requested timing thereof:
We ask for a timely execution of the financial modality or modalities notified, else we will be entitled to immediately suspend the services.
Any disputes against invoices issued by wherever SIM have to be made within ten (10) days by email (finance@whereversim.de), mentioning specifically which items are under dispute. We will examine the items under dispute within five (5) working days. If such examination does confirm the Customer’s opinion, the parties will agree amicably and in good faith and by presenting the essential data about the correctness or incorrectness of the invoice which the Customer has disputed. If an invoice is found to be incorrect, we will correct it within five (5) working days and then paid in full by the Customer within ten (10) days. Invoiced items, which are not disputed, will be paid within the regular payment terms. If an invoice has not been disputed within thirty (30) calendar days after issuance, this invoice shall be considered as accepted by the Customer.
11. Warranty
All SIM cards provided by wherever SIM are manufactured by third parties. We assume the technical specifications of the SIM card from these manufacturers. As is custom in trade, these technical specifications are to be considered as approximate and represent no warranted characteristics. Customer shall ask us for a written confirmation prior to any return of the SIM cards.
The Customer has to check the SIM card upon their delivery. Complaints or objections in regards to quantity or type of SIM cards, as well as in regards to externally visible defects can only be considered if they are sent to wherever SIM in writing within ten (10) days of receipt of the SIM cards.
wherever SIM has to be notified about other defects immediately, at the latest within seven (7) days after its determination, in writing. Failure to comply with this deadline may lead to the exclusion of other warranty claims resulted. In case of justified complaints, the Customer is entitled to either rectification or replacement, as stipulated in Clause 9 above.
Customer is not entitled to claim any defects in case such defects are only representing an insignificant deviation from the functionalities or an insignificant impairment of the usability.
Claims for damages the Customer may incur subsequent to the repair or replacement of the SIM cards, in particular transport, travel, labor and material costs, are excluded, as far as these expenses increase because the supplied SIM card has been moved to another location than the establishment of the Customer.
We exclude warranties for electronic components and semiconductors if changes are made to the SIM cards, if they are used contrary to the technical specifications or if the SIM cards are not returned to us within a reasonable period set by us for their return. If returned without proper packaging, the Customer shall bear the risk of damage. The Customer shall check the SIM cards for defects before installing the supplied SIM cards in devices. wherever SIM cannot accept any warranty for the usability of the supplied SIM cards for the purpose intended by the Customer. Damage caused by improper use or other measures of the Customer during transport, installation, operation, connection or storage do not justify any claims against wherever SIM.
12. Liability clause
1) In cases of intent or gross negligence on the part of wherever SIM or one of its representatives or vicarious agents and/or the impossibility of performance in case of intent or gross negligence, as well as in the case of injury to life, body or health being caused by slight negligence, wherever SIM shall be liable under the terms of the law. In cases of gross negligence, wherever SIM’s liability is limited to the typical contractual, foreseeable loss, unless any exceptions other than those in Sentence 1 or Sentence 3 of this para. 1 have also occurred. Otherwise, wherever SIM is only liable pursuant to the German Product Liability Act or for the culpable infringement of significant contractual obligations. Damage claims for the infringement of significant contractual obligations, however, are limited to the typical contractual, foreseeable loss, unless any exceptions other than those in Sentence 1 or Sentence 3 of this para. 1 have also occurred.
2) The provisions of the aforementioned para.1 apply to all damage claims (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular for defects, for breach of contractual obligations or for tort. They also apply to claims for the reimbursement of expenditures of no avail. The liability for delay, however, is determined in accordance with clause 7 of these Terms and the liability for impossibility in accordance with para. 3 of this clause and the liability for damages arising from events in the networks of our Network Infrastructure Providers in accordance with para. 5 of this clause.
3) With regards to wherever SIM’s liability for the impossibility of performance and apart from the cases in para.1, sentence 1 and sentence 2 of this clause, wherever SIM’s liability on account of impossibility of performance is limited to damages and to the reimbursement of alleged expenditure to a total of 15% of the value of the relevant order. Any other claims by the Customer for impossibility -including at the end of any performance deadline set for wherever SIM- are precluded. The Customer’s right to withdraw from the agreement pursuant to these Terms remains unaffected.
4) Any change to the burden of proof to the detriment of the Customer is not connected with the aforementioned paragraphs of this clause.
55) We are liable for damages arising from events that occur in the networks of our Services and Network Infrastructure Providers only in the same extent as the Services and Network Infrastructure Provider is liable under each valid law in the context of the underlying contracts with us. This does not include our liability, nor that of the Services and Network Infrastructure Providers following intent or gross negligence or in the absence of a warranted property.
6) A general exclusion of liability applies to damages resulting from the discontinuation or abolishment of permits and regulatory licenses, or the failure of facilities of our Services and Network Infrastructure Providers. We also exclude our liability for the cases caused by unauthorized interventions by the Customer, as well as for incidental, consequential, special damages, lost revenue or lost profits.
7) wherever SIM’s liability for damage to property is limited to the foreseeable, typically occurring damage in each case to the amount of €100,000 (sum of insurance).
13. Limitation Periods
1) The limitation period for claims and rights ensuing from defects in goods and/or services – irrespective of the legal grounds – is one year. The limitation period for statutorily excluded cases (as e.g. for immovable objects, buildings) is three years.
2) The limitation period in accordance with para. 1 also apply for all damage claims asserted against wherever SIM – which are connected with the defect – irrespective of the legal grounds for the claim.
3) The limitation period in accordance with para. 1 and para. 2, however, applies provided that:
a) The limitation periods do not generally apply in the case of intent or fraudulent concealment of a defect, or if wherever SIM has guaranteed the quality of the delivery item.
b) Additionally, the limitation periods for damage claims do not apply for gross negligence, for cases—not relating to the provision of a defective item and/or the provision of a defective service—of culpable breach of significant contractual obligations, for cases of culpable injury to life, body or health or for claims made under the German Product Liability Act. The limitation periods for damage claims also apply for the reimbursement of alleged expenditure.
4) For all claims, the limitation period starts on delivery and, in the case of services, on acceptance.
5) Unless otherwise expressly stated, the legal provisions regarding the start of the limitation period, the suspension of the statute of limitation (“Ablaufhemmung”), hindrance and the recommencement of the limitation period remain unaffected.
6) The foregoing regulations apply accordingly for damage claims, which are not connected to a defect. Para. 1 of this clause 13 applies for the respective limitation period.
14. data protection
1) Identity of data protection responsible
We are wherever SIM GmbH, Humboldtstr. 53, 22083 Hamburg, Bundesrepublik Deutschland. Our company is registered at the commercial register of the Amtsgericht Hamburg under file number HRB 140434. If you have any concerns about our data protection, you can reach us at the above postal address or by e-mail at datenschutz@whereversim.de.
2) In processing data on your behalf and within the scope of the agreement, wherever SIM is the processor and the Customer is the controller as defined in the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data. On this basis, we may specifically collect, save, and use personal data, as defined in the European Directive 95/46/EC (hereinafter: Personal Data) insofar as this is necessary for the establishment and the implementation of this Agreement or its settlement. This includes:
The data we process relates to our customers, staff of our customers with whom we communicate to render our services as well as any other users with whom our customers may communicate via our services. As far as the personal data relates to our customers and is collected from them, the data is required for us to enter into the agreement. If the data is not provided, we may not be able to enter into the customer agreement or may not be able to perform our contractually agreed services.
3) We process the personal data for:
The legal basis of processing is the contractual relationship with our customers as well as provisions in applicable telecommunications law (namely the German Telecommunications Act and the ePrivacy Directive 2002/58/EC) on the use of Customer Contract Data and Traffic Data for these purposes. Further legal justifications are legal obligations placed upon us by regulations serving public interest such as laws on public safety and on record-keeping and taxation.
4) We observe the German Federal Data Protection Act and the German Telemedia Act during the processing of Customer’s data. In accordance with the German Federal Data Protection Act (“BDSG”) we remind you that we store and process data using electronic data processing. Please deem this as legally required notification pursuant to § 33 para 1 BDSG.
However, it is the Customer’s responsibility to instruct us properly and the Customer is responsible and liable for the compliance with any and all data protection regulations, especially, and not limited to, data retention periods and collection of consent of the affected data subjects. The Customer shall hold wherever SIM completely harmless in case of any claim by a third party with respect to the processing of data.
wherever SIM shall only process Personal Data. Consequently, we reserve the right to process the collected basic data, Customer Portal data and traffic data, and submit this in particular to Network Infrastructure Providers and other telecommunications service providers, upon your instruction and if this can contribute to the detection of the misuse of telecommunication facilities and the abusive use of services.
We may disclose personal data in the following circumstances:
We also retain third parties as data processors, in which case we have entered into appropriate agreements as required by Article 28 of the General Data Protection Regulation. These recipients as well as our staff have entered into undertakings to protect the privacy of any data they process as well as secrecy of communications.
Also wherever SIM will ensure that it complies with the conditions imposed under the applicable statutory regulations – especially the Data Protection Directive 95/46/EC and the Electronic Communication Privacy Directive 2002/58/EC as implemented in the member state of the Customer, or in accordance with at the present time applicable law – in relation to the processing of (personal) data.
The Customer explicitly agrees to the engagement of sub-processors by us in accordance with this Agreement and entitles us to enter into appropriate data protection arrangements with such sub-processers (§ 62 BDSG EU GDPR). Consequently, we are entitled to forward the necessary accounting and receivables data, e.g. to a debt collection company in the case of judicial or extrajudicial proceedings aiming for the recovery of debt.
We transfer personal data to third countries in the following circumstances:
Only if the Customer has given us explicit permission in this respect, we may use the Customer's personal data, i.e. basic data for purposes of advertising, market research or consulting.
Upon Customer’s permission, wherever SIM may use personal data to the evaluation and improvement of our service, however the customer's data is made anonymous immediately. The Customer can object at any time to such use of the Personal Data.
Unless expressly agreed otherwise in writing, data storage is not guaranteed by us. We will therefore not bear any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with respect to the loss or deletion of your data.
Data subjects are entitled to request access to their personal data we process as well as rectification of inaccurate data and erasure or restriction of processing in the circumstances, namely when we process data unlawfully. Data subjects have the right to receive personal data that they originally provided to us in a commonly used, machine-readable format. With respect to access requests, access will only be granted to the extent this can be done without disclosing personal data of other data subjects. Namely, traffic data of third parties will only be disclosed in anonymized form.
In case a data breach, as defined in regulation 611/2013/EC, occurs which is related to the performance of this Agreement the Parties shall inform each other immediately.
Data subjects may lodge a complaint with the supervisory authority if they believe we have not complied with our data protection obligations. The competent authority is the German Federal Commissioner for Data Protection and Freedom of Information, Husarenstrasse 30, 53117 Bonn, Federal Republic of Germany, poststelle@bfdi.bund.de.
If you have questions about our handling of personal data or wish to request access, rectification, erasure or restriction of processing, you may contact us at our address given above or by email to datenschutz@whereversim.de.
15 Place of performance and jurisdiction
The place of performance and payment is Hamburg. The courts of Hamburg are agreed as the place of jurisdiction for all disputes arising in connection with the contract and the entire contractual relationship, applying the law of the Federal Republic of Germany. The application of the uniform law on the sale of goods, in particular the application of the UN Convention on Contracts for the International Sale of Goods (CISG), is expressly excluded.
16 Other provisions
a) Force majeure
Although the technology developed by wherever SIM constantly strives to ensure both network availability and the comprehensive functionality of its own system, liability for temporary interruptions in network availability caused by force majeure is excluded. This applies in particular to unforeseeable circumstances beyond the control of wherever SIM if they temporarily and unreasonably affect the provisions of the wherever SIM services, including but not limited to operational failures, regulatory and administrative measures, power supply failures or industrial disputes.
b) Transfer to Third Parties
In addition to the agreed subcontracting, the transfer of the obligations of this Agreement or any part thereof requires the prior written consent of the other party. However, if either party sells or disposes of part or all of its business by way of sale, merger, amalgamation or acquisition, the Contract shall be transferred together with the business (subject to trading restrictions, if applicable). The parties undertake to inform each other in writing as soon as a decision has been made to sell the Company or parts thereof.
c) Severability clause
Should individual provisions of the contract be or become invalid, this shall not affect the validity of the remaining provisions. Ineffective provisions shall be replaced by provisions with regard to the intended economic purpose.
d) Trademarks and logos
The use of wherever SIM trademarks and logos by the customer requires the agreement and conclusion of a separate agreement between the parties. wherever SIM is entitled to use the company name and logo of the customer including the subsidiaries of the parties (def. as in § 15 ff. AktG) for PR and marketing purposes. The customer may object to this use at any time.
e) Confidentiality
The parties undertake to treat the contents of the agreement between the parties, as well as any confidential information in connection with it, as confidential. Both parties may use confidential information only for the purposes of this Agreement. Neither party may publish or disclose confidential information to third parties without the consent of the other party. Information shall be considered confidential if the party creating the information has marked it as confidential or the confidentiality arises from the circumstances. In case of doubt, all information is confidential. Information which was already known to the parties at the time of receipt of the information or which was disclosed by third parties without an obligation to keep it confidential or which was already in the public domain at the time of disclosure or which subsequently became known without a breach of this confidentiality agreement shall not be considered confidential. Exempt from this obligation of confidentiality and non-disclosure of information under the Agreement is information where both parties agree to disclosure, e.g. to official bodies in advance of disclosure. Affiliated companies pursuant to § 15 et seq. AktG and subcontractors treated on a need-to-know basis are not considered third parties for the purposes of this section as long as they are bound by similar confidentiality obligations as set out in this clause.
The foregoing confidentiality obligations shall apply until the termination of this Agreement and for the period of three (3) years after its termination.
Hamburg, 13.09.2021
