a. These T&Cs apply to all contracts between ENAiKOON GmbH, Scheelestr. 1a, 59929 Brilon, registered in the commercial register of Amtsgericht Arnsberg under HRB 15208 (hereinafter "ENAiKOON"), and its contractual partners (hereinafter "customers"), in particular for the purchase of hardware and software products and the use of services provided by ENAiKOON.
b. ENAiKOON's product range is directed equally at consumers and businesses. However, via the websites enaikoon.com and enaikoon.de, ENAiKOON sells its products only to businesses.
c. For the purposes of these T&Cs:
d. Contracts are concluded exclusively on the basis of the following terms and conditions. The customer acknowledges these conditions even if they wholly or partially contradict the customer's own terms and conditions.
a. A contract with ENAiKOON is only concluded upon confirmation in text form from ENAiKOON, which may occur within 7 working days of the offer being submitted. An acceptance declaration issued after this deadline constitutes a new offer from ENAiKOON to the customer.
b. Termination of a contract or withdrawal from a contract must be made in writing or by fax in order to be effective.
Consumers have a fourteen-day right of withdrawal. Further information can be found in the ENAiKOON withdrawal policy.
a. ENAiKOON provides – depending on the scope of the contract – the following services:
b. Some of ENAiKOON's tracking modules are technically capable of reading data via the On-Board Diagnostics (OBD) vehicle diagnostic system interface or CAN bus data. If the customer wishes to use this option, the customer must ensure that the respective vehicle manufacturer technically permits the reading of data and that reading the data is in accordance with the contractual provisions between the customer and the vehicle manufacturer. ENAiKOON does not assume any warranty if reading the data is not possible due to technical protective measures by the manufacturers or due to a lack of interface compatibility. ENAiKOON's liability pursuant to clause 8 remains unaffected.
c. ENAiKOON only provides the services listed under 4.a. in return for payment of the contractually agreed usage fees.
d. If ENAiKOON provides the customer with a third-party SIM card, the customer will incur additional charges for the use of the third-party SIM card. The customer must have the SIM card activated by the respective mobile network operator themselves. The contract for mobile communications services is then concluded directly between the mobile communications provider and the customer. The prices and contractual conditions agreed between the customer and the third-party provider apply to the use of the mobile communications service. ENAiKOON points out that higher charges (e.g. due to roaming) may arise for the use of services provided by ENAiKOON in countries other than those contractually agreed. Further information on this can be found in the contractual agreements between the customer and the respective mobile communications provider. These higher charges are also to be borne by the customer.
e. If ENAiKOON provides the customer with an ENAiKOON SIM card in addition to the services mentioned under 4.a., the provisions under clause 12 apply in addition.
f. ENAiKOON makes certain of the services mentioned under 4.a. available to consumers free of charge for a period of 6 months upon purchase of a tracking device, provided this is expressly agreed. During this period, the customer will only incur the charges for the use of the SIM card. After the 6-month period, the customer has the option to agree on continued use for a fee.
g. ENAiKOON may offer the customer additional services. There is no obligation to do so. Additional services are agreed in a separate contract for which separate service descriptions and price lists apply, which will be communicated to the customer in each case. Any termination or invalidity of the contract for additional services shall have no effect on the contract for the basic services.
h. ENAiKOON is not responsible for the transport and further processing of data. Depending on how the data/images are transmitted or further processed, e.g. by SMS, MMS, e-mail or radio, third parties are involved in the process. ENAiKOON is not liable for this transmission path.
i. ENAiKOON grants the user a non-exclusive, non-transferable, non-sub-licensable right, limited to the duration of this contract, to use the software online. The customer is not entitled to decompile ENAiKOON software products.
j. ENAiKOON is not obliged to keep its services available on its own server, but may use third parties.
a. Deliveries are made against advance payment. Invoice amounts are generally due 10 days after invoicing, with the exception of payment terms stipulated by a standing order invoice.
b. The customer may choose to pay the invoice amount by bank transfer or to grant ENAiKOON a SEPA direct debit mandate.
c. If the customer has granted a SEPA direct debit mandate, ENAiKOON will collect the amount due from the customer's specified account. Collection takes place 10 days after the invoice date. The pre-notification period is shortened accordingly. The customer will be informed of the amount and timing of collection in the case of a standing invoice. The customer undertakes to ensure that the account is covered. Costs arising from non-execution or reversal of the direct debit are borne by the customer, unless the customer is not responsible for the non-execution or reversal.
d. If the customer falls into arrears with their usage fees for a quarter, ENAiKOON is entitled, 31 days after the due date of the quarterly payment, to suspend its own services, in particular to block access. Suspension of services means, inter alia, that no data collection and processing by ENAiKOON takes place during the relevant period and that this could no longer be made up after the arrears have ended. If the customer is a business, the customer bears the costs associated with disconnection and reconnection of EUR 14 per mobile end device for reconnection, and ENAiKOON is further entitled to charge an administrative fee of EUR 3.00 per reminder. ENAiKOON will point out these consequences of default separately in its first reminder. The customer is free to prove that the default damage was not incurred at all or was substantially lower than the flat fees.
e. A set-off against claims of ENAiKOON is only permissible with counterclaims based on a warranty obligation of ENAiKOON, and otherwise only with undisputed or legally established claims. The customer may only exercise a right of retention pursuant to Section 273 BGB in respect of claims against which set-off is permissible under sentence 1.
a. Unless expressly agreed otherwise, ENAiKOON shall determine the appropriate method of dispatch and the carrier at its reasonable discretion.
b. ENAiKOON is only obliged to deliver the goods to the carrier in good time and in proper order, and is not responsible for delays caused by the carrier.
c. If the customer is a consumer, the risk of accidental loss, accidental damage or accidental destruction passes to the customer at the time the goods are delivered to the customer or the customer defaults on acceptance. In all other cases, the risk passes to the customer when the goods are handed over to the carrier.
d. Subject to the provision in clause 6(e), the customer bears any shipping and cash on delivery costs unless expressly agreed otherwise.
e. If the customer is a consumer and exercises their right of withdrawal, the customer shall bear the regular costs of return if the delivered goods correspond to those ordered and if the price of the item to be returned does not exceed EUR 40, or if, at a higher price, the customer has not yet provided the counter-performance or a contractually agreed instalment payment at the time of withdrawal. Otherwise, the return is free of charge for the customer.
a. ENAiKOON retains title to the delivered goods until full payment of the purchase price (including VAT and shipping costs).
b. The customer is not entitled, without prior written consent, to resell goods that are subject to retention of title. In the event that ENAiKOON consents to resale, the customer hereby assigns to ENAiKOON the claims arising from the resale up to the amount of the purchase price payable to ENAiKOON plus a surcharge of 20%. ENAiKOON hereby authorises the customer to collect the claims so assigned in the ordinary course of business, whereby ENAiKOON may revoke this authorisation at any time in the event of payment default by the customer.
a. The liability of ENAiKOON is excluded to the extent that this is not regulated otherwise in the following provisions.
b. The exclusion of liability under lit. a. does not apply to damage caused by the culpable breach of a material contractual obligation in a manner that jeopardises the achievement of the purpose of the contract. Material contractual obligations are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on compliance with which the contractual partner regularly relies and may rely. Liability is, however, limited to the damage typical of the contract, the occurrence of which each party was required to take into account at the time of contracting given the circumstances known to it at that time.
c. The exclusion of liability under lit. a. does not apply to damage arising from injury to life, body or health that is based on a negligent breach of duty by ENAiKOON or its legal representatives or vicarious agents.
d. The exclusion of liability under lit. a. does not apply to damage based on an intentional or grossly negligent breach of duty by ENAiKOON or its legal representatives or vicarious agents.
e. The exclusion of liability under lit. a. does not apply to claims under the Product Liability Act.
f. To the extent that ENAiKOON's liability is excluded or limited, this also applies to the liability of ENAiKOON's legal representatives, employees and vicarious agents.
g. To the extent that ENAiKOON has given a guarantee as to the quality or durability of the items it has delivered, the content of this guarantee is not affected by the above limitation of liability.
a. If the customer is a consumer, ENAiKOON shall be liable – subject to the provisions of clause 8 – for material defects in accordance with the applicable statutory provisions, in particular Sections 434 et seq. BGB.
b. If the customer is a business, the following applies:
(1) The customer must inspect the goods received. Obvious defects must be reported in writing within 14 calendar days of receipt of the delivery. Hidden defects must be reported by the customer within 14 calendar days of discovering the defect. The customer must prove the date of discovery in case of dispute. If the customer fails to give notice, the customer is excluded from warranty claims in respect of the defect concerned.
(2) If the customer requests subsequent performance, ENAiKOON may, at its choice, remedy the defect or deliver a defect-free replacement. In the case of replacement delivery, ENAiKOON will deliver a defect-free replacement within 14 days. If both types of subsequent performance are only possible at disproportionate cost, ENAiKOON may refuse subsequent performance notwithstanding Section 275 BGB (impossibility of subsequent performance). If subsequent performance fails, the customer may, at its choice, reduce the price or withdraw from the contract; claims for damages — to which the limitation of liability pursuant to clause 8 of these T&Cs applies — remain unaffected in the event of failure of subsequent performance. In the case of a justified request for subsequent performance, ENAiKOON shall bear the expenses required for the purpose of subsequent performance. This does not include the costs of dismantling the defective goods and the costs of installing the replacement goods. These costs shall be borne by the customer.
(3) Warranty claims for material defects become time-barred one year after delivery of the goods.
(4) In the case of a justified request for subsequent performance by the business, ENAiKOON shall also bear the necessary shipping and cash on delivery costs. The customer must choose a customary and appropriate method of transport. If the costs exceed the costs normally incurred for such transport and a cheaper transport option would have been reasonable for the customer, the customer shall bear the difference.
(5) If ENAiKOON's review shows that there was no defect and the request for subsequent performance was therefore unjustified, the customer is obliged to pay ENAiKOON a flat fee of EUR 40.00 for the review effort. The customer is permitted to prove that the review effort was not incurred at all or was lower. Claims for remuneration by ENAiKOON for repairs commissioned by the customer that are not caused by a defect remain unaffected by the flat fee.
(6) The provision in clause 9(b)(5) applies accordingly if the customer returns goods after the expiry of the warranty period and the review reveals that the goods are not defective. If the goods are defective, a separately agreed remuneration for the repair is payable in addition to the flat fee.
c. If the customer is a dealer/reseller, the following applies in addition to lit. b.:
(1) The dealer must agree with its business customers, if they are businesses, an arrangement corresponding to lit. b. above.
(2) If the dealer assigns to a customer the warranty claims to which the dealer is entitled against ENAiKOON, or undertakes to do so, the dealer must notify ENAiKOON thereof without delay in writing.
(3) Since ENAiKOON as the manufacturer has better technical knowledge for the rectification of material defects, in the event that a customer of the dealer approaches the dealer with warranty claims, the dealer is obliged to inform ENAiKOON without delay. At ENAiKOON's request, the dealer shall ask its customer to contact ENAiKOON directly. Independently of this, the dealer shall carry out the rectification of defects in accordance with ENAiKOON's instructions; ENAiKOON may also carry out the rectification of defects itself.
d. A guarantee exists for goods delivered by ENAiKOON only if this was expressly given in the order confirmation.
a. ENAiKOON endeavours to ensure the highest possible availability of its services. The obligation is fulfilled when the user is able to use the services at a monthly average (30 days) of 98%. To maintain availability, ENAiKOON is entitled to carry out regular maintenance measures and service activities. In doing so, ENAiKOON may temporarily, for a maximum of 24 hours, interrupt the operation of the servers without this constituting a service disruption. ENAiKOON will, where possible, inform the customer in advance. In the case of technical or other problems that are not within ENAiKOON's sphere of influence but originate from the sphere of third parties, in particular the respective mobile network operator or satellite operator (force majeure, fault of third parties, failure of the mobile network, failure of satellite transmission, etc.), the customer may commission ENAiKOON to take measures to remedy the disruption. If the customer is a business, ENAiKOON is entitled to charge a flat fee of EUR 180.00 per fault for this. The customer is free to prove that the costs were not incurred at all or were substantially lower than the flat fee.
b. Strict liability for damages for defects existing at the time of conclusion of the contract (Section 536a BGB) is excluded.
c. Defects and disruptions affecting the availability of the services must be reported to ENAiKOON without delay, but no later than within two weeks of becoming aware of them. Liability of ENAiKOON for non-use of the services is excluded for the period during which the customer, despite knowledge of a disruption, has not notified ENAiKOON or has not sent defective devices to ENAiKOON and is responsible for this.
d. ENAiKOON is not liable for the availability of the GPS system required for location services. ENAiKOON points out that it is not currently certain whether the next generation of satellites will be available in time before the end of the service life of the current satellites, so that there may be temporary gaps in location services.
e. ENAiKOON is not liable for the permanent availability of the GPRS service required for data transmission. ENAiKOON points out that it is possible for network operators to shut down the service in the future.
f. ENAiKOON applications are compatible with the current versions of common internet browsers and operating systems. Special compatibility requirements that are not expressly agreed are not owed by ENAiKOON and cannot be objected to by the customer as a defect.
a. The customer warrants that the address details provided by them are correct and complete. The customer shall notify ENAiKOON without delay of any changes.
b. The customer is aware that their monitoring modules may transmit data protected by data protection laws, and that the customer is not permitted to use the data to monitor third parties in particular. If unlawful data processing occurs under data protection laws, the customer shall cease data transmission or have it modified by the manufacturer. ENAiKOON points out that location data may only be used or disclosed to third parties with the consent of the person whose position is concerned or from which their position can be inferred. The customer undertakes to ensure that this provision and the data protection laws are complied with. ENAiKOON is not liable for misuse of data resulting from the customer or a third party transmitting, using or making accessible data without the consent of the person concerned. The customer must take precautions to ensure that this data cannot be accessed without authorisation. The customer is obliged to keep the access credentials made available to them secret from unauthorised third parties and to store them securely so as to prevent misuse by third parties for access purposes. The personal password must be changed at regular intervals. Third parties who use the customer's internet connection with the customer's knowledge and consent are not unauthorised.
c. The customer must ensure that the use of ENAiKOON's services does not infringe third-party rights. This applies in particular to personal rights, copyright, performance protection rights and industrial property rights.
d. It is the customer's responsibility to ensure that only data or volumes of data are transmitted or displayed that are legally permissible.
e. If the customer uses the options offered by ENAiKOON to store data on ENAiKOON storage media, the customer grants ENAiKOON the non-exclusive right to reproduce the data within the framework of fulfilling the contractual service obligations. ENAiKOON accepts no responsibility for the content provided by the customer. If the content stored by the customer contains legal violations, ENAiKOON is entitled to delete such content without delay.
f. The customer must report faults and defects in the services provided by ENAiKOON without delay and must cooperate to a reasonable extent in remedying the fault.
g. If the customer breaches their obligations under the contract, in particular under these T&Cs, or violates statutory obligations in this context, ENAiKOON may, after an unsuccessful warning with a reasonable deadline, suspend its own services and block access. A suspension that is attributable to conduct for which the customer is responsible does not release the customer from their obligation to pay the contractually agreed fees to ENAiKOON. If ENAiKOON is held liable by third parties due to a culpable breach by the customer of the provisions under clauses 11(b), (c), (d), (e) and/or (f), the customer shall indemnify ENAiKOON against third-party claims and shall reimburse ENAiKOON the costs of reasonable legal defence and enforcement.
a. If ENAiKOON provides the customer with an ENAiKOON SIM card in addition to the services mentioned under 4.a., the following provisions under clauses 12(b) to 12(j) apply in addition.
b. ENAiKOON shall provide the customer with a SIM card for the duration of the contract. The SIM card may only be used for the purposes contractually agreed between the customer and ENAiKOON. The SIM card does not pass into the ownership of the customer and must be returned to ENAiKOON after the contract ends, unless the return would require unreasonable effort due to the specific use of the tracking module (e.g. because the module was installed in an inaccessible location). If the customer does not return the SIM card within 2 weeks of being requested to do so, the customer must pay ENAiKOON a flat fee of EUR 19.90.
c. The customer must keep the card in a safe place and protect it from harmful influences. The customer must immediately report any recognisable defect or damage and the loss or theft of the card, stating the card number. If the customer initially reports the loss or theft verbally, this must be followed up in writing without delay. In the event of loss resulting from a criminal act by a third party (e.g. theft, embezzlement, etc.), the customer is also obliged to report the matter to the police without delay.
d. In the event of loss of the SIM card, the customer will receive a duplicate SIM card. The costs incurred for this are set out at www.enaikoon.de and must be borne by the customer.
e. If a code (e.g. PIN or PUK) is required to use a service, the customer is obliged to keep the code secret and not to make it accessible to unauthorised third parties. If, on the basis of established facts, there is a suspicion of misuse by third parties, the customer must change the code without delay or – if the change can only be made by ENAiKOON – commission ENAiKOON to make the change and inform ENAiKOON of the suspicion.
f. If services of ENAiKOON are used by unauthorised third parties using the customer's cards, the customer is liable for all charges incurred until notification is given to ENAiKOON, unless the customer is not responsible for the unauthorised use. The customer is also liable for charges and damages arising from the fact that notification to ENAiKOON was not given without delay for reasons attributable to the customer.
g. The use of ENAiKOON services by the customer is only permitted in the countries contractually agreed. If the customer uses ENAiKOON services in areas not contractually agreed, higher charges (e.g. due to roaming) may arise. The customer must reimburse these to ENAiKOON. Further information on country prices can be found at www.enaikoon.de.
h. Invoice objections must be raised by the customer with ENAiKOON in writing within 8 weeks of receipt of the invoice.
i. In a dispute with ENAiKOON, the customer may initiate conciliation proceedings at the Bundesnetzagentur (Federal Network Agency) by submitting an application.
j. To the extent that the customer passes on the SIM card to third parties for use, the customer must inform such third parties of the obligations under these T&Cs.
k. The provisions on statutory warranty in clause 9 also apply to SIM cards, in particular also in the case where SIM cards are permanently installed in ENAiKOON hardware and cannot be replaced.
ENAiKOON stores the data transmitted and entered by the customer in the course of contract processing for the duration of the agreed contract period, unless the customer requests deletion of the data beforehand. One month after the end of the contract, ENAiKOON will delete all existing data. ENAiKOON points out that all data that the customer wishes to continue using should be exported by that point. No separate notification from ENAiKOON will be given.
a. ENAiKOON may process and store the data relating to the respective contracts to the extent that this is necessary for the execution and processing of the purchase contract and as long as ENAiKOON is obliged to retain this data pursuant to statutory provisions.
b. ENAiKOON reserves the right to transmit personal data of the customer to credit agencies to the extent that this is necessary for the purpose of a credit check, provided the customer expressly consents to this. ENAiKOON will otherwise not pass on personal customer data to third parties without the customer's express consent.
c. ENAiKOON is entitled to process and use the master data of its customers to the extent that this is necessary for advising customers, for advertising and for market research for its own purposes. ENAiKOON observes the customers' worthy interests in this regard. For advertising by e-mail, the following additionally applies: for direct advertising for the operator's own products similar to those purchased by the customer, ENAiKOON may advertise via the e-mail address provided by the customer. The customer may at any time object to any use of their data under clause 14(c). ENAiKOON will, upon request, at any time provide the customer with complete and free information on the stored data relating to the customer.
d. Further details on data processing when placing an order via ENAiKOON's websites are provided by ENAiKOON in its Privacy Policy.
All devices except the ENAiKOON locate-19 are intended exclusively for commercial use. They are registered as B2B devices intended for use exclusively in other than private households (Section 6(3) sentence 2 ElektroG). The customer therefore undertakes not to use these products for private purposes themselves, nor to make them available to third parties for their private use, whether for payment or free of charge. The customer also undertakes not to sell these products to employees or private third parties, unless they can prove that the modules are only used commercially. If the customer breaches these obligations and is responsible for the breach, the customer is obliged to compensate ENAiKOON for the resulting damage.
a. If the customer is a business, the customer assumes the obligation to dispose of the delivered devices at the customer's own expense in accordance with the statutory provisions after the end of their use. In doing so, the customer also releases ENAiKOON from the obligation under Section 10(2) ElektroG (manufacturers' take-back obligation) and associated third-party claims. The customer must contractually oblige any commercial third parties to whom the customer passes on the delivered devices to dispose of the devices at their own expense in accordance with the statutory provisions, in particular those of the ElektroG, after the end of their use, and in the event of further transfer, to impose a corresponding obligation in turn. If the customer fails to contractually oblige third parties to whom the customer passes on the delivered devices to assume the disposal obligation and to impose further obligations, the customer is obliged to take back the delivered devices after the end of their use and to dispose of them at the customer's own expense in accordance with the statutory provisions.
b. If the customer is a consumer, ENAiKOON hereby informs the customer that such waste equipment must not be disposed of as unsorted municipal waste. It must be collected separately and disposed of via the local collection and return systems.
ENAiKOON is entitled to amend the General Terms and Conditions on condition that the customer is notified of this in writing no later than six weeks before the amendment comes into force. The customer may object to the amendment within a period of four weeks after receipt of the notification; otherwise, the amendment shall be deemed approved. ENAiKOON must expressly draw attention to this in the notification.
a. Any amendments, additions or partial or complete cancellation of the contract must be made in writing, including any amendment or cancellation of the written form requirement.
b. For contracts concluded by ENAiKOON on the basis of these General Terms and Conditions and for claims of any kind arising from them, the law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
c. The place of performance and exclusive place of jurisdiction for all disputes under contracts subject to these T&Cs is Berlin-Charlottenburg, provided the customer is a merchant within the meaning of the HGB, a legal entity under public law or a special fund under public law. In all other cases, ENAiKOON or the customer may bring an action before any court having jurisdiction under statutory provisions.