1. general
wherever SIM GmbH
Großer Burstah 25
20457 Hamburg
Germany
(hereinafter wherever SIM, and/or 'We', 'Our' and similar) offers its services to the customer (hereinafter: "Customer" and/or "Your", "Your" and similar) on the basis of the following General Terms and Conditions (hereinafter: GTC), as stated in the corresponding order form. Any changes to the wherever SIM price list and the description of services will be communicated by wherever SIM at regular intervals. The current status of the supported network infrastructure providers in the individual tariffs can be requested at any time by e-mail (sales@whereversim.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 applied to clarify the contradictions:
These GTC shall apply exclusively. Your terms and conditions of business/purchasing conditions are not legally binding for the business relationship with us. This shall apply even if we do not expressly object to your terms and conditions of business/purchasing. The German version of these GTC shall always be the legally binding contractual basis, in particular even if translations of these GTC may contain contradictory wording.
2. services, offers and orders provided by wherever SIM
The wherever SIM services are provided exclusively to corporate customers.
wherever SIM provides telecommunication services in the field of mobile communication directly or indirectly with the support of carefully selected partners. These include Internet of Things (hereinafter: "IoT") SIM cards for the transmission of data, voice and SMS, as well as the wherever SIM online portal for managing SIM cards and their services. In general, the customer should note that a suitable, ready-to-use end device and a suitable SIM card are prerequisites for using the services we offer.
The wherever SIM services are used for 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 centers) as well as the remote operation of devices for monitoring, measurement, reading and control (hereinafter referred to as "IoT System Services") by the customer. This includes application scenarios in the areas of human-machine and machine-human communication, e.g. the control of a system by a technician using their mobile device.
Because wherever SIM does not have its own mobile network in many countries, it acquires network services directly or indirectly, with the help of carefully selected partners, from network infrastructure providers (e.g. a mobile network operator) in Germany and abroad (hereinafter: "network infrastructure providers"). The selection of network infrastructure providers, including the change of network infrastructure provider during the term of the contract, is at the discretion of wherever SIM or its chosen partners.
If a network infrastructure provider deems part of the coverage area to be unsuitable, wherever SIM is entitled to change or reduce the coverage area accordingly. Notwithstanding the right of termination triggered by such change or reduction of the coverage area, such change or reduction of the coverage area shall not give rise to any claims by the customer.
Our services are geographically limited by the reception and transmission capabilities of our network infrastructure providers' networks. Although our partners and we continually strive to select the strongest network available in each country under our agreements with the network infrastructure providers, the customer accepts that the services of wherever SIM are subject to the current state of technology with its limitations, including geographical limitations, and the wherever SIM services may therefore not always be available in every location. Consequently, the services of wherever SIM are subject to the limitations of technical conditions beyond the control of wherever SIM . Any claims by the customer, including, but not limited to, claims for damages and recourse arising from the lack of nationwide network availability, are therefore excluded (see 13 Disclaimer).
The wherever SIM online portal allows the customer to set usage limits for data, voice calls and SMS for all SIM cards at once. wherever SIM will therefore not offer any of the services described as "bill shock prevention" or personalized price information SMS, unless specifically agreed in writing with wherever SIM , in accordance with EU Regulation 544/2009. A usage limit for data, voice calls or SMS set in the wherever SIM online portal is subject to the technical conditions in the mobile network and may take effect with a delay, as there may be a delay in the transmission of this connection data from the network operator to wherever SIM . In particular, the transmission of connection data for voice calls is delayed. In most cases, this data is only transmitted after the call has ended and with a delay of 12 hours. There is therefore a high probability that the configured usage limit will be exceeded. For clarification: If a usage limit is configured and is exceeded, the customer is obliged to pay the resulting costs.
wherever SIM has no knowledge, involvement or liability for the specific content sent to or from the customer's device.
The scope of the services mentioned depends on the latest version of the service description, in connection with the services booked by the customer and accepted by us. wherever SIM reserves the right to adapt and expand the scope of services at any time or, in rare cases, especially in the event of misuse, to reduce functionalities. The customer acknowledges and agrees that this agreement and any order for a service is not contingent on the delivery of any future functionality or feature, nor on any oral or written public statement by wherever SIM regarding future functionality or features.
When submitting an order form (hereinafter also: "Order"), the Contractor must always provide its VAT ID and/or commercial register number and company details. Our offers are non-binding with regard to price, quantity, delivery time and availability. Orders submitted to us will be confirmed in writing, usually by e-mail.
3. contract term, termination
After the customer has submitted the order form, which wherever SIM provides for this purpose, online or by e-mail or has sent it by fax, post or courier to wherever SIM and wherever SIM has sent the confirmation to the customer by e-mail to the e-mail address provided by the customer in the order form, the contract begins. The date of confirmation also determines the start date of the contract term, as defined in the order form.
The contract term depends on the price model selected by the customer. A minimum contract term may arise in the event of the addition or activation of a chargeable service within the scope of the specific price conditions as described in the price list. Price changes, the addition of services and/or tariffs by the customer, even during the term, may extend or shorten the contract term if this is agreed in the corresponding order form. These term changes will be recorded in connection with the selected tariff in the relevant order form and will take effect after submission of the relevant order form and its confirmation by wherever SIM .
In general, the contract term following the confirmation of the order form by wherever SIM will be one (1) month and then extend by one (1) further month, unless the order is terminated thirty (30) days before the end of the month by written notice from either party. Details are set out in the order form confirmed by wherever SIM .
Either party shall be entitled to terminate an order immediately with immediate effect in writing if the other party has committed material breaches of the agreement and fails to remedy the breaches within thirty (30) days of receipt of the written notice with precise details of the breach and the request to remedy it.
Notices of termination must be submitted in writing, e.g. by letter, e-mail or fax. Services will be provided until the last day of the contract period and the customer is obliged to pay all costs incurred up to this point.
4. Use of the services by the customer
After confirmation of the order form, the customer is authorized to use the services of wherever SIM as specified in the order form, in particular the allocation of SIM cards, the use of mobile services relating to the transmission of data, voice and SMS, the use of the wherever SIM API and the wherever SIM online portal for monitoring and administration of the SIM cards.
The customer shall ensure by testing or equivalent means that the SIM cards provided by wherever SIM are compatible with the devices before installation. It is the customer's responsibility to test the SIM card and the device.The predicted large-scale growth of IoT devices will pose major challenges for mobile network operators. One major challenge that mobile operators will have to overcome is the risk posed by the mass deployment of inefficient, insecure or defective IoT devices on mobile operators' (domestic and roaming) networks. If deployed en masse, such IoT devices can cause network signaling traffic to increase exponentially, impacting network services for all mobile network users. In the worst case, mass deployment of such IoT devices can bring a mobile network to a complete standstill.IoT devices that overuse the mobile network can affect not only the devices causing the incident, but also other devices on the same IoT service platform or the devices of other end customers.
Network signaling resources are sized assuming an overall device usage profile with a reasonable balance between traffic and signaling needs. Therefore, it is important that IoT devices using cellular networks adhere to some basic principles before they can be securely connected to cellular networks.
It is essential to ensure that your IoT device is optimized for sparing use of cellular networks to prevent overloading of cellular networks by IoT devices.
4.1 NetworkCommunications Policy
In the event of a major network disruption caused by non-compliance with the Network Communications Policy, wherever SIM may temporarily block or permanently terminate the SIM cards at its own discretion.
In the event of a minor network disruption caused by non-compliance with the Network Communications Policy, wherever SIM may, at its own discretion, temporarily block the SIM cards.
The customer undertakes to repair the device or customer system if these cause network disruptions caused by non-compliance with the Network Communications Policy. Until such time as the Customer can provide a remedy for these devices, wherever SIM may, at its sole discretion, keep the SIM card(s) blocked and take all necessary measures to ensure that these devices do not negatively impact the Services and network infrastructure. The Customer shall bear all costs associated with remedying the Device and Customer Systems and any associated transmission costs for performing updates on the Devices.
wherever SIM reserves the right to charge for any unexpected costs that may arise due to non-compliance with this Network Communications Policy.The Device, the Customer System and the Device's communications module shall comply in all respects with the Device Requirements and the Network Communications Policy.
With the exception of network signaling ("MSUs") generated by SMS traffic, the Device shall not generate, on average, more than:
a) Ten (10) MSUs per hour for a Device installed in a fixed location.
b) Twenty (20) MSUs per hour for a Device that is mobile.
All changes to the device and/or firmware shall be tested by the customer in a secure environment prior to release. At a minimum, testing must ensure compliance with the Network Communications Policy.
The customer must notify wherever SIM of any planned releases that may affect the network's communications behavior.
Devices that deviate from this Network Communications Policy will generate more network signaling than normal and place a burden on our network and the networks of our network infrastructure providers. For non-compliance with the network communication guideline, wherever SIM charges an additional fee. This is charged per device per month until the problem causing the misbehavior is resolved.
Based on normal device behavior, we have set a threshold of 10,000 network signalings per device per month, including SS7, GTP and Diameter. The self-participation is €0.20 per device + €0.000125 per network signaling above the threshold.
4.2 The following applies with regard to the allocation and use of the SIM card(s):
Obligations of the customer
4.3 With regard to the provision of telecommunication services (IoT System Services), the following regulations apply:
The availability of network connectivity in certain countries and regions is determined by the wherever SIM price list in its most current version in connection with the services ordered by the customer and confirmed by wherever SIM .
The use of services beyond the provision of IoT System Services requires the consent of wherever SIM and must be agreed in writing.
For all services, wherever SIM reserves the right to amend, replace or discontinue them at any time. wherever SIM does not guarantee the continuous availability of any particular service.
wherever SIM may, where reasonable, from time to time and without notice and without prejudice to its rights under this Agreement, suspend any Service and disconnect SIM Cards from the Network at its sole discretion in any of the following circumstances, provided that wherever SIM shall use reasonable endeavors to restore the Services and reconnect the SIM Card to the Network as soon as reasonably practicable:
(a) during any technical failure, modification or maintenance of the Network;
(b) if the Customer fails to comply with the terms of this Agreement after having been notified in writing of such non-compliance (including but not limited to non-payment of any amounts due) until such non-compliance is remedied;
(c) if the Customer fails to comply with the terms in paragraph 5 wherever SIM Online Portal Usage Policy until such non-compliance is remedied;
(d) if the Customer fails to comply with the terms of the Network Communications Policy in paragraph 4.1 until such non-compliance is remedied; and/or
e) if the Customer causes anything which wherever SIM reasonably believes may jeopardize the operation of the Network or the Services, or if the Services are used in a manner prejudicial to the interests of the Customer and/or wherever SIM ;
f) as a result of an emergency or on the instructions of the emergency services or any government or competent authority or for the Customer's own safety. disclose the wherever SIM Online Portal or any technology associated with the wherever SIM Online Portal ("Technology", including Documentation); modify, translate or create derivative works based on the wherever SIM Online Portal or Technology; or copy (other than for reasonable archival purposes), rent, lease, distribute, pledge, assign or otherwise transfer or encumber any rights in the wherever SIM Online Portal or Technology; use the wherever SIM Online Portal or technology for timekeeping or other office purposes or otherwise for the benefit of any third party, other than authorized end users; or remove any proprietary notices or labels associated with the wherever SIM Online Portal. User may not use or access the wherever SIM Online Portal, related software or technology to create a competing product to the wherever SIM Online Portal, create a product or the wherever SIM Online Portal with similar ideas, features, functionality or graphics to the wherever SIM Online Portal, or copy any ideas, features, functionality or graphics of the wherever SIM Online Portal. wherever SIM wherever SIM and its supplier reserve all rights to the wherever SIM Online Portal, related software and technology and are authorized to use any user reviews via the Online Portal without notice, attribution or compensation. To be clear, no express or implied license is granted to the patents of wherever SIM or wherever SIM's suppliers in connection with the use of wherever SIM Online Portal.
5. the following guidelines apply with regard to the provision of the API and the wherever SIM online portal:
The customer is responsible for the technical setup and integration into existing systems on their side. The implementation must be carried out in accordance with the API specifications and guidelines provided by us or our partners.
The customer also bears sole responsibility for the security of the hardware, data and access data required to access the wherever SIM online portal.
5.1 Registration
As a prerequisite for using the wherever SIM Online Portal, each user of the wherever SIM Online Portal is requested to register on the Online Portal and to choose a unique password and a unique user name ("User ID"). The Customer shall ensure that each such User provides wherever SIM with accurate, complete and updated registration information. A user may not
a) select or use as a User ID the name of another person to impersonate that person without appropriate authorization; or
b) use a name that is subject to the rights of a person other than that user.
5.2 Applicable Laws
Userswill not use the wherever SIM Online Portal or any related software in any manner that
a) infringes the intellectual property or proprietary rights, publicity or privacy rights, or other proprietary rights of any third party,
b) violates any applicable law, statute, ordinance or regulation, including, but not limited to, laws and regulations relating to export, spamming, privacy, consumer and child protection, obscenity or defamation, or
c) is harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous or similarly offensive. Furthermore, users may not enter any data into the wherever SIM online portal that could be considered personal data. For example, if the user wishes to enter information in the "End customer" fields, they must ensure that this data cannot be linked in any way to a private individual.
5.3 Security
Userswill not violate or attempt to violate the security of the wherever SIM Online Portal, including but not limited to
a) accessing data not intended for that user or logging into a server or account that that user is not authorized to access,
b) attempting to probe, scan or test the vulnerability of any system or network or breach security or authentication measures without proper authorization,
c) attempting to disrupt the functionality of the wherever SIM Online Portal, including but not limited to overloading, "flooding", "mailbombing" or "crashing",
d) falsifying TCP/IP header information or any part of the header information in an email,
e) taking any action to gain access to the wherever SIM online portal to which that user is not entitled, or
f) sending viruses, worms, Trojan horses or other harmful code or attachments. Violations of system or network security may result in civil or criminal liability. wherever SIM reserves the right, but is not obligated, to monitor the wherever SIM Online Portal at any time to ensure compliance with this User Policy. Each user consents to the processing of data required for the provision of the wherever SIM Online Portal in the data centers of wherever SIM or its suppliers.
5.4 Confidentiality
TheUser acknowledges that the wherever SIM Online Portal (and the information provided) constitutes valuable proprietary information of wherever SIM and its supplier and that unauthorized disclosure or use of this information is prohibited and could cause irreparable harm to wherever SIM and its supplier. The User will treat such information, including the results of any evaluation, as confidential and will use it only in connection with the wherever SIM online portal. The user will not disclose this information to any person or company that is not bound by these terms and conditions. The three preceding sentences do not apply to information that:
(a) was or becomes public knowledge at the time of disclosure;
(b) was previously known without restriction on use or disclosure;
(c) was lawfully obtained from a third party;
(d) was independently developed;
(e) was authorized for disclosure by wherever SIM or its suppliers; or
f) was disclosed in response to a valid court order or lawful request by a government agency or as otherwise required by law, provided that the user first notifies wherever SIM and obtains an appropriate protective order.
5.5 Intellectual Property
TheUser will not directly or indirectly: Reverse engineer, decompile, disassemble or otherwise attempt to expose the source code, object code or underlying structure, ideas or algorithms of the wherever SIM Online Portal or any technology associated with the wherever SIM Online Portal ("Technology", including documentation); Modify, translate or create derivative works based on the wherever SIM Online Portal or Technology; or copy (except for reasonable archival purposes), rent, lease, distribute, pledge, assign or otherwise transfer or encumber any rights in the wherever SIM Online Portal or its Technology; use the wherever SIM Online Portal or Technology for timekeeping or other office purposes or otherwise for the benefit of any third party, other than authorized end users; or remove any proprietary notices or labels relating to the wherever SIM Online Portal. User may not use or access the wherever SIM Online Portal, related software or technology to create a competing product to the wherever SIM Online Portal, create a product or the wherever SIM Online Portal with similar ideas, features, functionality or graphics to the wherever SIM Online Portal, or copy any ideas, features, functionality or graphics of the wherever SIM Online Portal. wherever SIM wherever SIM and its supplier reserve all rights to the wherever SIM Online Portal, related software and technology and are authorized to use any user reviews via the Online Portal without notice, attribution or compensation. To be clear, no express or implied license to wherever SIM 's or wherever SIM's suppliers' patents is granted in connection with the use of wherever SIM Online Portal.
6. Blocking
Notwithstanding anyother terms and conditions, wherever SIM shall be entitled to block the use of the Services in whole or in part in the following cases, but not limited thereto (hereinafter: "Blocking"):
Despite a service suspension, the customer remains obliged to pay fixed costs and any usage-related costs, in particular monthly fees and minimum fees etc.
7. Prices and invoice
All prices quoted are exclusive of freight, packaging and ancillary costs, such as customs duties and import duties (if applicable). The statutory value added tax ("VAT") applicable at any given time will be charged additionally. In the event of significant changes in our manufacturing or purchasing conditions, we reserve the right to adjust our prices within ten (10) days of written notification. Following such a price adjustment, the customer is entitled to terminate his contract in writing within fourteen (14) days with a notice period of two (2) months to the end of the month. The prices applicable prior to the price adjustment shall apply for the remaining term.
We shall issue an invoice for the provision of SIM cards after receipt of the order. The amount is due within ten (10) days of receipt of the invoice. The SIM cards are activated by using them in a technically suitable device. You can receive confirmation of activation via wherever SIM API or via the wherever SIM online portal.
The agreed monthly fees or minimum fees are invoiced monthly. These fees are also due within ten (10) days of receipt of the invoice.
Variable costs, in particular agreed usage fees, are invoiced within ten (10) working days of the end of the billing month. These costs and/or fees are generally payable within ten (10) days of receipt of the invoice.
We send invoices to the customer by e-mail in Portable Document Format ("PDF"), for which the customer requires a valid reading license.
8. Provision of wherever SIM SIM cards, delivery times
Unless otherwise agreed in writing between the parties, wherever SIM will provide the SIM cards required for the use of the wherever SIM services.
wherever SIM will endeavor to meet the delivery dates communicated to the customer for the provision of SIM cards. However, as wherever SIM is dependent on the timely delivery of third party partners, no liability is accepted for deviating delivery dates. In the event of a delay, the customer grants wherever SIM a grace period of at least three (3) weeks to remedy the delay. The customer may cancel the corresponding order after this period by written notice. Compensation for non-performance is excluded even after expiry of the grace period, unless otherwise agreed in this contract.
Partial deliveries are to be accepted by the customer.
wherever SIM is entitled to withdraw from the contract if SIM cards ordered by the customer are no longer available on the market. The SIM cards supplied by wherever SIM to the customer may differ from the SIM cards ordered as long as the deviations are of a technical nature and there are no significant deviations in terms of functionality or user-friendliness from the order form or corresponding documents. In the event that a replacement product is technically more advanced than the SIM cards ordered, wherever SIM is entitled to adjust the price at its own discretion. Such a price increase will be communicated to the customer in writing in advance. The customer may cancel the corresponding order within seven (7) days of receipt of such notification from wherever SIM . If no withdrawal is made, the new prices shall be deemed accepted. If the customer exercises his right to withdraw from the order, wherever SIM excludes any claims for damages for non-performance.
The delivery time may be extended in the event of force majeure (see clause 14 a) below) and unforeseeable obstacles that occur after the order has been completed and confirmed by us, if these obstacles are beyond our control and have a significant impact on the delivery of the SIM cards. This extended delivery time shall also apply if such unforeseeable circumstances apply to wherever SIM's suppliers and their suppliers. wherever SIM shall immediately notify the customer of the beginning and end of such an extension of the delivery time. The customer may request wherever SIM in writing to declare whether wherever SIM withdraws from the order in this case or whether wherever SIM delivers with a reasonably extended delivery period. In the event that wherever SIM does not provide a delivery date within a reasonable time, the customer may withdraw from the corresponding order. In such a case, the customer is nevertheless obliged to pay for the services already provided by wherever SIM . All further claims and demands of the customer are excluded. However, wherever SIM will reimburse the customer for any overpayments.
The customer is responsible for the hardware required to provide the service.
9. Shipment
If the customer has requested shipment of the SIM cards, the customer shall bear the risk of accidental loss or accidental deterioration of the SIM card from the time of shipment, but no later than the time at which the SIM cards leave the premises of wherever SIM or its external service providers. This also applies if a delivery free of shipping and packaging has been agreed between both parties. The risk during transportation, including any returns, lies exclusively with the customer.
10. Acceptance of the SIM cards, claims for damages
The customer undertakes to compare and check the delivered SIM cards with the order. We refer to clause 8 of these GTC. In the event of an unjustified refusal to accept the SIM cards by the customer, wherever SIM shall set a written grace period of fourteen (14) days during which the customer must accept the SIM cards. If the customer continues to refuse acceptance after the grace period has expired or expressly declares in advance that he will not accept the SIM cards, wherever SIM may withdraw from the order and claim damages for non-performance. In this case, wherever SIM is entitled to claim 30% of the net value of the goods as compensation, notwithstanding the possibility that the claim may be higher. In this case, proof of damage by wherever SIM is not required. The customer can provide proof that the damage amounts to less than 30%.
This also applies if the customer withdraws from an order or the contract without justification.
If justified defects are reported by the customer in good time, wherever SIM can either rectify the defect or provide a replacement. The customer must request a corresponding replacement in writing. wherever SIM is to be granted a period of four (4) weeks for the fulfillment of the compensation. If wherever SIM decides to correct the defects, a refusal of such correction is only legal after wherever SIM has failed a second time in succession to correct the defects. If the compensation fails, the customer can either reduce the price accordingly or withdraw from the order. The statutory provisions on the dispensability of setting a deadline remain unaffected.
11. Payment, right of retention, security deposits and bank guarantee, disputes
The services of wherever SIM are generally paid in the following month. Invoices or any advance payments, unless otherwise agreed in writing, are payable without deduction on receipt of the invoice. Payments by bank transfer shall be made to the following bank account:
Recipient: wherever SIM GmbH
IBAN: DE43 2007 0024 0348 7246 00
BIC: DEUTDEDBHAM
Bank: Deutsche Bank PGK Hamburg
wherever SIM may withhold services until the invoice amount has been received and will monitor its own bank accounts and credit card facilities for incoming payments using all reasonable efforts. Any bank charges incurred shall be borne by the customer.
In the event of late payments and/or standard payments, wherever SIM shall be entitled to charge interest on arrears at a rate of eight percent (8%) above the applicable prime rate per annum. wherever SIM reserves the right to claim higher damages due to non-performance. The customer is only entitled to offset our claims with undisputed or legally binding counterclaims. Payments may only be made to the accounts specified by wherever SIM . This also applies if the customer is in arrears with his performance obligation within the framework of an order, tariff selection or this agreement. In this case, wherever SIM may also refuse further services or make the delivery of services dependent on appropriate securities, which the customer must provide. If the customer does not fulfill the reasonable requirements, wherever SIM is entitled to set a deadline of two (2) weeks by written declaration and to demand compensation for the service due to non-fulfillment after unsuccessful expiry of the deadline. At this point, we also have the right to terminate the contract in writing with immediate effect.
In the event of defective services, the customer is not entitled to withhold payments, unless the service is obviously defective and/or the customer is obviously entitled to refuse acceptance of the delivery. In this case, the customer shall only be entitled to withhold payment to the extent that the amount withheld is in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular the correction of the defects). The customer is not entitled to assert claims and rights for any defects if he is in arrears with the contractual payments. Furthermore, any amounts withheld and also the amounts already paid must be in reasonable proportion to the value of the defective service.
In the event that the customer chooses Post-Pay as the payment model, we may, at our discretion, require payment security from the customer to secure current and future payments by using one or more of the following methods:
A) Credit Limit
We may provide the Customer with a credit limit at the outset and notify the Customer of this in writing. We may change the credit limit at any time under this Agreement, which means that we are entitled to increase or decrease the credit limit at any time upon prior written notice within twenty-four (24) hours. We will send this notice to the Customer by email.
For the sake of clarity, please note that we may suspend our Services if the credit limit is exhausted, meaning that the sum of (i) the total invoice remaining unpaid plus (ii) the unbilled but accrued usage of all ordered Services exceeds the current credit limit. We reserve the right to suspend the Service without prior notice (see Section 5)
B) Bank Guarantee
Notwithstanding the fact that if the Customer's financial circumstances or past payment history are unacceptable to us, we may, at our sole discretion, request additional security for payment in the form of a deposit or bank guarantee. If the provision of the requested additional security for payment fails, we reserve the right to disconnect the Service.
To guarantee the fulfillment of the customer's obligations, wherever SIM may request an irrevocable and unconditional bank guarantee in our favor on first demand from a reputable bank accepted by us.
The bank guarantee must have been provided or increased before the start of the use of our services and the required proof must be submitted to wherever SIM . The amount and currency of the unconditional and irrevocable bank guarantee on first demand will be explained in the confirmation email sent by wherever SIM after the order for the Post-Paid Services has been placed.
We agree that if the sum of (i) the total invoiced amounts, remaining unpaid, plus (ii) the unbilled but accrued usage, is no longer covered by the above unconditional and irrevocable bank guarantee, we will ask the Client in writing to implement one or more financial provisions or combinations of provisions, together at a requested time:
If the financial arrangements are not carried out on time, we are entitled to suspend our services immediately.
Any discrepancies regarding wherever SIM's invoices must be communicated within ten (10) days by email (finance@whereversim.de), with a detailed description of the disputed elements. We will review the discrepancies within five (5) working days. If the customer's judgment is confirmed after the review, both parties will clarify in good faith and to the best of their ability what is correct and incorrect within the invoice disputed by the customer. If an invoice is deemed to be incorrect, we will correct it within five (5) working days and it must then be paid by the customer within ten (10) days. Invoiced items that are not disputed will be paid within the general payment terms. If an invoice is not disputed within thirty (30) days of issue, the invoice shall be deemed accepted by the customer.
12. Warranty
AllSIM cards provided by wherever SIM are manufactured by third parties. We accept the technical specifications of the SIM cards from the manufacturer. As is customary in the trade, these technical specifications are to be considered approximate and are not guaranteed. The customer must agree the return of the SIM cards with us in writing beforehand.
The customer undertakes to check the delivery of the SIM cards. Complaints and claims relating to the quantity or type of SIM cards, as well as to externally visible defects, may be taken into account if they are notified in writing to wherever SIM within ten (10) days of receipt of the SIM cards.
wherever SIM must be informed of other defects in writing without delay, but at the latest within seven (7) days of the defects being discovered. Failure to comply with this deadline may result in the exclusion of warranty claims. In the event of a justified complaint, the customer has a right to rectification or replacement delivery, as stipulated in clause 9.
The customer is not entitled to claim insignificant deviations in functionality or insignificant impairment of usability as a defect.
Claims for damages which the customer wishes to assert following a repair or replacement of the SIM card, in particular for transport, travel, labor and material costs, are excluded if the delivered card has been inserted in a place other than that intended for it.
We exclude the warranty for electronic components and semiconductors if changes have been made to the SIM card and these are contrary to the technical specifications or if the SIM cards have not been returned to us within a reasonable period of time set by us. If the complaint was returned in inappropriate packaging, the customer shall bear the risk of any damage. The customer must check the SIM cards for defects before the SIM cards are installed in devices. wherever SIM cannot guarantee the usability for the purpose intended by the customer. Damage caused by improper handling or other actions by the customer during transportation, installation, operation, connection or storage does not justify any claims against wherever SIM
13. liability notice
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 the event of intent or gross negligence, as well as in the event of injury to life, limb or health caused by slight negligence, wherever SIM shall be liable in accordance with the statutory provisions. In cases of gross negligence, wherever SIM's liability is limited to the foreseeable damage typical for the contract, unless exceptions other than those in sentence 1 or sentence 3 of this paragraph 1 have also occurred. Otherwise, wherever SIM is only liable according to the Product Liability Act or for the culpable violation of essential contractual obligations. However, claims for damages due to the breach of essential contractual obligations are limited to the foreseeable damage typical for the contract, unless exceptions other than those in sentence 1 or sentence 3 of this paragraph 1 have also occurred.
2) The provisions of the above paragraph 1 shall apply to all claims for damages (in particular for damages in addition to performance as well as 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 reimbursement of expenses without success. However, liability for delay is determined in accordance with clause 7 of these GTC and liability for impossibility in accordance with paragraph 3 of this clause and liability for damage resulting from events in the networks of our network infrastructure providers in accordance with paragraph 5 of this clause.
3) With regard to wherever SIM's liability for impossibility of performance and apart from the cases in paragraph 1, sentences 1 and 2 of this clause, wherever SIM's liability for impossibility of performance is limited to such damages and to the reimbursement of a total of 15% of the order value. Further claims of the customer due to impossibility - including at the end of each performance period of wherever SIM - are excluded. The customer's right to withdraw from the contract in accordance with these GTC remains unaffected by this.
4) Any change in the burden of proof to the detriment of the customer does not affect the aforementioned paragraphs of this section.
5) wherever SIM is only liable for damages caused by disruptions in the networks of our service providers and network infrastructure providers to the extent that the service provider and network infrastructure provider is liable under the respective applicable law within the framework of the underlying contracts with us. This does not apply in the case of intent or gross negligence or in the absence of a warranted characteristic. The total liability of wherever SIM of any kind arising from the negligence of wherever SIM or otherwise in connection with this agreement is limited to the amount paid by the customer for the services in the last one (1) month.
6) A general exclusion of liability also applies to damages resulting from the loss or abolition of permits and regulatory licenses or the failure of facilities of our service providers and network infrastructure providers. We also exclude our liability for cases of unauthorized intervention by the customer as well as for incidental, consequential or special damages, loss of revenue or loss of profit.
7) wherever SIM's liability for property damage is limited to the foreseeable, typically occurring damage in the amount of €100,000 in each case.
8) The customer shall be solely liable for its obligations to end customers in relation to the provision of end customer services and shall accordingly indemnify wherever SIM against all costs and expenses incurred by wherever SIM as a result of claims made directly by an end customer against wherever SIM in relation to the provision of end customer services to that end customer.
9) The Customer shall be solely liable to wherever SIM in respect of all charges (including, but not limited to, those incurred in the disconnection of SIM cards) for services provided by wherever SIM to the Customer under this Agreement:
a) whether or not the Customer includes the services in the End User Service; and
b) whether or not the End User Agreement is terminated for any reason.
14. limitation periods
1) The limitation period for claims and rights arising from defects in goods and/or services - regardless of the legal grounds - is one year. The limitation period for cases excluded by law (e.g. immovable property, buildings) is three years.
2) The limitation period pursuant to para. 1 shall also apply to all claims for damages related to the defects and asserted against wherever SIM , regardless of the legal grounds.
3) However, the limitation period pursuant to para. 1 and para. 2 shall apply if:
a) The limitation periods shall generally not 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) In addition, the limitation periods for claims for damages do not apply in cases of gross negligence, for cases - not limited to the provision of defective goods and/or the provision of a defective service - of culpable breach of essential contractual obligations, in cases of culpable injury to life, limb and health or for claims under the Product Liability Act.
4) For all claims, the limitation period shall commence upon delivery and, in the case of services, upon acceptance of the order.
5) Unless expressly stated otherwise, the statutory provisions regarding the commencement of the limitation period, suspension of expiry, suspension and recommencement of the limitation period shall remain unaffected.
6) The foregoing provisions shall apply mutatis mutandis to claims for damages that are not related to a defect. Paragraph 1 of this section 14 applies to the respective limitation period.
15. data protection
1) Identity of the data controller
We are wherever SIM GmbH, Großer Burstah 25, 20457 Hamburg, Federal Republic of Germany. Our company is registered in the commercial register of the Hamburg District Court under the file number HRB 140434. If you have any concerns about our data protection, you can contact us at our postal address above or by email at datenschutz@whereversim.de.
2) When disseminating data on behalf of the customer and within the scope of the contract, wherever SIM is the processor and the customer is the controller, as defined in 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, store and use personal data as defined in the EU Directive 95/46/EC (hereinafter: "personal data") insofar as this is necessary for the conclusion and performance or execution of this agreement. This includes:
The data we process relates to our customers, employees of our customers with whom we communicate to provide our services, and all other users with whom our customers can communicate about our services. Insofar as the personal data relates to our customers and is collected by us, the data is required for the conclusion of the contract. If the data is not provided, we may not be able to conclude the customer contract or provide our contractually agreed services.
3) We process the personal data for the following purposes
The legal basis for processing is the contractual relationship with our customers and the provisions of applicable telecommunications law (in particular the Telecommunications Act and the ePrivacy Directive 2002/58/EC) on the use of customer contract and traffic data for these purposes. Other legal justifications include legal obligations imposed on us by regulations in the public interest, such as public safety and accounting and taxation laws.
4) We comply with the German Federal Data Protection Act and Telemedia Act when processing customer 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 consider this as a legally required notification according to § 33 para. 1 BDSG.
However, it is the customer's responsibility to properly instruct wherever SIM and the customer is responsible and liable for compliance with any and all data protection regulations, in particular, and not limited to, data retention periods and obtaining the consent of the data subjects. The customer shall fully indemnify and hold wherever SIM harmless in the event of any third party claims regarding data processing.
wherever SIM only processes personal data. Consequently, we reserve the right to process the basic data, customer portal data and traffic data collected and, in particular, to transmit these to network infrastructure providers and other telecommunications service providers on your instructions if this can help to prove the misuse of telecommunications facilities and the misuse of services.
We may disclose personal data in the following circumstances:
We also engage third parties as data processors, in which case we have entered into appropriate agreements in accordance with Article 28 of the General Data Protection Regulation. These recipients, as well as our employees, have undertaken to protect the privacy of the data they process and the secrecy of communications.
wherever SIM also ensures that the conditions of the applicable legal provisions - in particular the Data Protection Directive 95/46/EC and the Directive on privacy and electronic communications 2002/58/EC, as implemented in the Member State of the customer or under the law currently in force - are complied with in relation to the processing of personal data.
The customer expressly undertakes to employ sub-processors through wherever SIM in accordance with this agreement and authorizes wherever SIM to take appropriate data protection measures with the sub-processor (§ 62 BDSG EU-DSGVO). Consequently, wherever SIM is entitled to transfer the necessary accounting and receivables data, e.g. to a debt collection agency, in the event of legal or extraordinary proceedings for the collection of receivables.
We transfer personal data to third countries in the following circumstances:
Only if the customer has given us express permission in this respect may we use the customer's personal data, i.e. basic data, for the purposes of advertising, market research or consulting.
With the customer's permission, wherever SIM may use personal data to evaluate and improve our services, but the customer data will be anonymized immediately. The customer can object to such use of personal data at any time.
Unless expressly agreed otherwise in writing, data storage is not guaranteed by us. We will therefore not be liable for any damages, liabilities, losses (including any loss of data or profits) or any other consequences you may suffer in relation to the loss or deletion of your data.
Data subjects have the right to request access to their personal data processed by us, as well as the correction of inaccurate data and, under certain circumstances, the deletion or restriction of processing, namely if 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. In connection with access requests, access is only granted to the extent that this is possible without disclosing the personal data of other data subjects. In particular, third-party traffic data will only be disclosed in anonymized form.
In the event of a data breach within the meaning of Regulation 611/2013/EC relating to the performance of this agreement, the parties shall inform each other without undue delay.
Data subjects may lodge a complaint with the supervisory authority if they consider that we have not complied with our data protection obligations. The competent authority is the Federal Commissioner for Data Protection and Freedom of Information, Husarenstraße 30, 53117 Bonn, Federal Republic of Germany, poststelle@bfdi.bund.de.
If you have any questions regarding the handling of personal data or wish to request access, rectification, erasure or restriction of processing, you can contact datenschutz@whereversim.de at the address given above or by e-mail.
16. 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, subject to 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.
17. 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 labor disputes.
b) Transfer to third parties
In addition to the agreed subcontracting, the transfer of the obligations of this contract or parts 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 assigned together with the business (subject to trading restrictions where applicable). The parties undertake to inform each other in writing as soon as a decision to sell the company or parts thereof has been made.
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 a view to the intended economic purpose.
d) Brands and logos
The use of wherever SIM brands 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 company logo of the customer, including the subsidiaries of the parties (def. as in § 15 ff. AktG) for PR and marketing purposes. The client may object to this use at any time.
b) Transfer to third parties
In addition to the agreed subcontracting, the transfer of the obligations of this contract or parts 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 sale, merger, amalgamation or acquisition, the contract shall be assigned together with the business (subject to trading restrictions where applicable). The parties undertake to inform each other in writing as soon as a decision to sell the company or parts thereof has been made.
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 a view to the intended economic purpose.
d) Brands and logos
The use of wherever SIM brands 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 the company logo of the customer, including the subsidiaries of the parties (def. as in § 15 ff. AktG) for PR and marketing purposes. The client 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 therewith, as confidential. Both parties may only use confidential information 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 deemed confidential if the party that created the information has marked it as confidential or if the confidentiality arises from the circumstances. In case of doubt, all information is confidential. Information which was already known to the parties when the information was received or which was disclosed by third parties without any obligation to keep it confidential or which was already in the public domain at the time of disclosure or which subsequently became known without breach of this confidentiality agreement shall not be considered confidential. Exempt from this obligation to confidentiality and non-disclosure of information in accordance with the agreement is information for which both parties agree to disclosure, e.g. to official bodies prior to disclosure. Affiliated companies pursuant to Section 15 et seq. AktG and subcontractors, which are treated according to the "need to know" principle, 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 a period of five (5) years after its termination.
Hamburg, 07.12.2023