General
Terms and conditions

1. scope of application

1.1 Epsilon provides so-called M2M Services in connection with the use of SIM cards on the basis of and in accordance with these General Terms and Conditions (GTC) as an M2M Connectivity Service Provider.

1.2 All offers, M2M Service requests, contracts, deliveries and services of Epsilon in connection with M2M Services are subject to these GTC. We do not recognize any terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions unless we have expressly agreed to their validity in writing. Our GTC shall also apply if we carry out the delivery without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our GTC.

2. offer, conclusion of contract, individual contracts

2.1 Our offers are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period.

2.2 By sending a signed M2M Service Application by the Customer, a corresponding M2M Service Agreement is concluded with Epsilon.

2.3 A separate M2M service contract (individual contract) shall be concluded for each SIM card ordered by the Customer and delivered on the basis of the application accepted by Epsilon, even if these are combined in one order.

2.4 Technical details and specifications relating to the SIM cards are not deemed to be warranted characteristics.

3. reservation of self-supply

Acceptance of the M2M service request is subject to correct and timely delivery by Epsilon’s suppliers. This shall not apply in the event that Epsilon is responsible for the non-delivery, which is particularly the case if we have not concluded a congruent hedging transaction.

4. service content, scope of services

4.1 Epsilon’s M2M Service includes the provision of the type and number of SIM cards specified in the order confirmation, which can be inserted into an M2M device and allow data communication via an access point (APN) using selected mobile networks.

4.2 Upon request and for an additional charge, Epsilon will reserve a private sub-network for the Customer in which the IP addresses of the respective SIM cards are known.

4.3 Epsilon provides a SIM management portal for the use and management of SIM cards. With the help of the SIM management portal, customers can activate and block SIM cards on their own responsibility and create customized usage reports.

4.4 The communication and evaluation data are stored in a computer center, secured and protected against unauthorized access by third parties.

4.5 The data communication option is limited to the available mobile networks and respective network capacities.

4.6 The M2M Service also includes a monthly billing service for the SIM cards used by the customer.

4.7 In addition, Epsilon shall, upon request, provide advisory assistance and support in the event of malfunctions on the basis of the following service level regulation (clause 11.).

4.8 The M2M Service Agreement with Epsilon does not establish a contractual relationship with the network operator.

4.9 The SIM cards supplied remain the property of the respective network operator and are only provided for use as part of the agreed M2M service.

5 Obligations of the customer

5.1 The SIM cards purchased may only be used to establish M2M data transmission connections and not for other telecommunications services (e.g. general voice services, web browser services, music downloads).

5.1.1 In deviation from 5.1, the “FUSION IoT ULTIMATE” tariff portfolio expressly permits the use of tethering, streaming services and the provision of HotSpots.

5.1.2 The use of VoIP services is approved if this has been contractually agreed in advance.

5.2 The Customer may provide value-added services to third parties on the basis of Epsilon’s M2M Service. The resale of pure data transport services (connectivity) to third parties and the resale of SIM cards are not permitted.

5.3 The customer is responsible for ensuring that the M2M devices used comply with the technical specifications and compatibility requirements of the network provider.

5.4 The customer is obliged to cooperate insofar as this is necessary and reasonable for the proper establishment and maintenance of the functionality of the Connectivity Service.

5.5 The customer must protect the SIM cards provided to him from harmful influences or improper handling, store them carefully and securely, and report any loss, theft and any recognizable defect or damage to a SIM card immediately.

5.6 Unauthorized use of the SIM cards is prohibited. Unauthorized use exists in particular,

• if the customer gains access to the information of other network users without authorization, changes it or disrupts the access of other network users. This applies to the same extent in the event of an attempt or support of a third party in such an act;
• if the customer establishes unauthorized connections to other networks or makes changes to these connections;
• if the customer uses the M2M service for a fraudulent system or for manipulation through deliberate misrepresentation;
• if the customer intentionally and fraudulently uses or manipulates the M2M service in such a way that agreed fees cannot be billed or cannot be billed correctly;
• if the customer uses the M2M service in such a way that the quality of the M2M services offered or the mobile network used is deliberately disrupted or the use by other network subscribers is deliberately impaired;
• if it is used to transmit obscene, pornographic, offensive or other illegal information;
• if the customer uses the M2M service to transmit and/or store copyrighted content without the customer holding the necessary rights to do so.

5.7 The customer is obliged to comply with the terms of use for the SIM Management Portal and to protect the access data provided to him against unauthorized access by third parties.

6. indemnification by the customer

The Customer undertakes to indemnify Epsilon and the respective network operator against liability for damage caused to a third party by the use of the SIM cards by the Customer, its vicarious agents and its customers or contractors.

7 Charges, terms of payment, prohibition of set-off

7.1 The customer is obliged to pay the agreed monthly fee per SIM card for the provision of the M2M Services. It is not possible to change tariffs until the agreed minimum term has expired, unless the customer wishes to change to a higher-value tariff (upgrade).

7.2 For billing purposes, the data consumption per SIM card is rounded up to full KB (kilobytes) per connection setup.

7.3 Our prices are exclusive of shipping costs and statutory VAT.

7.4 Epsilon reserves the right to pass on any increases in the network operator’s roaming charges to the Customer in the corresponding amount.

7.5 Our invoices are payable net cash within 7 days of the invoice date. The Customer shall issue Epsilon with a SEPA direct debit mandate for this purpose.

7.6 Offsetting against counterclaims of the customer or the withholding of payments due to such claims is only permitted if and insofar as the counterclaims are undisputed, recognized or have been legally established.

8 Consequences of late payment

8.1 If the Customer is more than one month in arrears with the payment of the fee owed by it (from the return debit note or expiry of the payment deadline) and if the sum of the outstanding fee claims amounts to more than € 70.00 net, Epsilon shall be entitled to withhold the M2M Services, in particular to temporarily block the SIM cards concerned, until all outstanding fee claims in respect of which default has occurred have been fulfilled.

8.2 The right to extraordinary termination for good cause and the assertion of damages caused by delay shall remain unaffected.

8.3 Epsilon shall be entitled to charge a flat-rate reminder fee of € 2.50. There is no payment obligation for the first reminder. The customer reserves the right to prove that no damage was incurred or that the damage was significantly lower than the lump sum.

8.4 The customer remains obliged to pay the agreed, non-usage-dependent fees even during a block.

9. transfer of risk, warranty

9.1 If the SIM cards ordered are sent, the risk of accidental destruction or loss of the SIM cards shall pass to the customer upon proper handover to the sender.

9.2 The customer is obliged to check the delivered SIM cards for their general technical functionality within one week of delivery and to report any defects within the aforementioned period. The customer will receive a replacement for each non-functioning card. In the event of late notification of defects, Epsilon reserves the right to refuse to replace the cards.

9.3 Epsilon accepts no liability for disruptions to data exchange or the online portal caused by faulty or improper installation of SIM cards by the Customer or third parties, or faulty or improper installation, operation or use of the administration software.

9.4 Epsilon assumes no liability for network availability. Furthermore, Epsilon accepts no liability for radio, atmospheric or geographical interference at the location where the respective SIM card is used.

9.5 Otherwise, the warranty period is 12 months, calculated from the transfer of risk.

10. exclusions and limitations of liability

10.1 Epsilon assumes no liability for transmission restrictions or interruptions due to

• weather-related, environmental or topographical circumstances; massive (concentrated) use or capacity restrictions;
• Restrictions regarding the network operator’s facilities;
• Restrictions on third-party facilities and/or services;
• Modifications, adjustments, upgrades, relocations, repairs, maintenance or similar activities necessary for the proper or optimized functioning of the Network Operator Services, the Network Operator Facilities and/or Third Party Facilities and/or Services.

10.2 Epsilon’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations and tort, shall be limited in accordance with the following paragraphs of this clause 8, insofar as fault is involved in each case.

10.3 Epsilon shall not be liable in the event of simple negligence, unless it is a breach of material contractual obligations. Essential to the contract are the M2M services in accordance with Section 4.

10.4 Insofar as Epsilon is liable for damages on the merits pursuant to clause 10.3, such liability shall be limited to damages which were foreseeable as a possible consequence of a breach of contract at the time of conclusion of the contract or which should have been foreseeable if due care had been exercised. Indirect damage and consequential damage resulting from defective performance shall only be eligible for compensation if such damage is typically to be expected when the delivery item or service is used as intended.

10.5 In the event of liability for simple negligence, Epsilon’s obligation to pay compensation for material damage and resulting further financial losses shall be limited to an annual net fee for the SIM card concerned per claim, unless it is completely excluded in accordance with Section 10.3.

10.6 The above exclusions and limitations of liability shall apply to the same extent in favor of Epsilon’s executive bodies, legal representatives, employees and other vicarious agents.

10.7 The limitations of this clause 10. do not apply to liability for intentional behavior, for guaranteed characteristics, for injury to life or health or under the Product Liability Act.

11. incidents, service level

11.1 If a data communication fault occurs during the use of the SIM cards, the customer must report this immediately. Epsilon will inform the respective mobile network operator of the fault.

11.2 Epsilon accepts fault reports relating to access to or use of the SIM Management Portal daily from 08:00 to 17:00 on the toll-free service telephone number 0049 800 / 9900 909 and via support@fusion-iot.de. In the event of faults received on working days (Mondays 08:00 to Fridays 17:00), Epsilon shall rectify the faults within 24 hours of receipt of the Customer’s fault report within the scope of the existing technical and operational possibilities. For fault reports received after 17:00 on Fridays, Saturdays, Sundays or on public holidays, the fault rectification period begins at 08:00 on the following working day.

12. confidentiality / data protection

12.1 Epsilon shall treat the usage data of the SIM cards used by the Customer, their places of use and information about the Customer’s business relationships as strictly confidential and shall not disclose them to any third party, unless and to the extent that Epsilon is obliged to do so by law, by court order or by order of a public authority.

12.2 Epsilon is entitled to inform the responsible network operators and portal providers of any disruptions.

12.3 To the extent necessary for the performance of the contract, the full names, business telephone numbers and email addresses of the managing directors and responsible employees of the customer shall be stored and used. The information required under data protection law on the rights of data subjects can be found on the Epsilon website.

12.4 It is the Customer’s responsibility to take appropriate precautions to secure its data generated using the M2M Service, in particular also with regard to a possible future termination of the respective M2M Service Agreement.

13. reservation of change / service provision by subcontractors

13.1 Epsilon reserves the right to change the agreed M2M Services, in particular the online portal provided, if and to the extent that this is necessary to comply with legal or official requirements or for technical reasons or the change does not conflict with the Customer’s interests. Changes must be announced with a reasonable period of notice, unless they must be carried out immediately due to legal or official orders.

13.2 Epsilon shall be entitled to use third parties to fulfill the contractual performance and to replace them, provided and insofar as the Customer does not suffer any significant disadvantages as a result.

14 Contract term, termination

14.1 The term agreed for the M2M Service shall apply. The term of the respective individual contract begins with the first activation of the respective card. During the minimum term, ordinary termination is excluded for both parties.

14.2 Ordinary termination is possible for the first time at the end of the agreed minimum term with a notice period of three months to the end of the respective calendar month. If the contract is not terminated on time, the contract is automatically extended by 1 month. Termination is possible at the end of the respective extension period with a notice period of one month to the end of the respective calendar month.

14.3 If the termination is not to affect all, but only some of the SIM cards used by the customer, the termination must make clear which SIM cards are to be covered by the termination in detail, with reference to the respective SIM card numbers.

14.4 The right to use the SIM Management Portal expires as soon as the customer’s last individual contract ends.

14.5 The right to extraordinary termination without notice for good cause remains unaffected. In the event of justified extraordinary termination without notice by Epsilon, the Customer shall remain obliged to pay the agreed monthly fees until the expiry of the next permissible ordinary termination option (expiry of the minimum contract term, ordinary notice period). The customer reserves the right to prove that less damage has been incurred.

15. blocking of SIM cards

15.1 Epsilon shall be entitled to block the SIM cards concerned if there are concrete, fact-based indications that the M2M Service is being misused. If reasonable for Epsilon, the Customer shall be given the opportunity to remedy its abusive usage behavior before an intended blocking.

15.2 A block does not release the customer from the obligation to pay the agreed monthly fees.

15.3 In the event of extraordinary termination without notice for good cause, Epsilon shall be entitled to block the SIM cards concerned immediately.

16. force majeure

Force majeure, civil unrest, official measures, strikes, lockouts or other unavoidable events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. The customer has the right to extraordinary termination of the contract, including the individual contracts, if the service disruption lasts at least one week.

17 Choice of law, place of jurisdiction

17.1 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).

17.2 The place of jurisdiction for any disputes arising from and in connection with the M2M Services to be provided by Epsilon shall be Hof, unless another exclusive place of jurisdiction applies; however, we shall also be entitled to sue the Customer at its registered office.

18. code of conduct

The customer undertakes to comply with all relevant statutory provisions.

The parties agree that honest, fair and transparent dealings in business dealings and compliance with legal provisions and ethical principles are a matter of course. There is also a consensus that social commitment and climate and environmental protection are important. The customer must ensure that the provisions of the International Labor Organization (ILO) with regard to the rights of employees and their working conditions (such as, in particular, compliance with human rights, prohibition of child and forced labor, minimum standards in the area of occupational health and safety, guarantee of appropriate remuneration) are complied with in connection with the provision of the contractual services.

The parties agree that corruption and bribery must be rejected in every respect. The customer undertakes to refrain from demanding, accepting, offering or granting unlawful and/or immoral benefits or other advantages. The customer further confirms that none of its employees derive an unjustified personal and/or economic advantage from the conclusion of the agreement. In addition, the Customer is obliged to avoid conflicts of interest vis-à-vis Epsilon or the respective network operator and to refrain from doing anything that could damage the reputation of Epsilon or one of the network operators.

A breach of the provisions of this Code of Conduct may constitute good cause for extraordinary termination without notice.