Terms and Conditions

1. Scope of application

1.1 Epsilon provides so-called M2M services in connection with the use of SIM cards as an M2M connectivity service provider on the basis of and in accordance with these Terms and Conditions (T&C).

1.2 All offers, M2M service requests, conclusion of contracts, deliveries and services by Epsilon in connection with M2M services are subject to these T&C. We do not accept any terms and conditions of the customer that conflict with or deviate from our T&C unless we have expressly agreed to their validity in writing. Our T&C shall also apply if we carry out the delivery without reservation in the knowledge that the customer’s conditions conflict with or deviate from our T&C.

2. Offers, conclusion of contract, single 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 contract is concluded with Epsilon.

2.3 A separate M2M service contract (single 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 they are combined in one order.

2.4 Technical information and specifications relating to the SIM cards shall not be deemed to be warranted characteristics.

3. Self-delivery reservation

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

4. Content and 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 On 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 administration of SIM cards. With the help of the SIM management portal, the SIM cards can be activated and blocked by the customer on his own responsibility and individually required usage reports can be created.

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

4.5 The data communication option is limited to the available mobile phone 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 provide advisory assistance on request and support in the event of malfunctions on the basis of the following service level regulation (clause 11.).

4.8 The M2M service contract 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 within the scope of the agreed M2M service.5 Obligations of the customer

5. Obligations of the customer

5.1 The SIM cards obtained may only be used for setting up M2M data transmission connections and not for other telecommunications services (such as general voice services, web browser services, music downloads).

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

5.1.2 The use of VoIP services is authorised 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 the pure data transport service (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 for the proper production and maintenance of the functionality of the Connectivity Service and is also reasonable for the Customer.

5.5 The customer must protect the SIM cards provided to him/her from harmful influences or improper handling, store them carefully and securely, and report any loss, theft and any recognisable defect or damage to a SIM card without delay.

5.6 Unauthorised use of the SIM cards must be refrained from. Unauthorised use is in particular,

• if the customer obtains access to information of other network users without authorisation, modifies such information or disturbs the access of other network users. This shall apply to the same extent in the event of an attempt or assistance by a third party in such an act.;
• if the customer establishes unauthorised connections to other networks or makes changes to these connections;
• if the Customer uses the M2M Service for a fraudulent scheme or for manipulation through intentional misrepresentation;
• if the Customer intentionally and fraudulently uses or manipulates the M2M Service in such a way that agreed charges cannot be billed or cannot be billed correctly;
• if the customer uses the M2M service in a way that deliberately disrupts the quality of the M2M services offered or the mobile network used or deliberately impairs the use by other network subscribers;
• if the use is for the transmission of obscene, pornographic, offensive or other unlawful information;
• if the Customer uses the M2M Service to transmit and/or store copyright-protected 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 it against unauthorised access by third parties.

6. Release from liability by the client

TThe 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, the customer’s vicarious agents and the customer’s own customer or contractor.

7 Charges, terms of payment, prohibition of offsetting

7.1 The Customer is obliged to pay the agreed monthly fee per SIM card for the provision of the M2M Services. A change of tariff is not possible until the expiry of the agreed minimum contract term, unless the customer wishes to change to a higher 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 the statutory value added tax.

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

7.5 Our invoices are payable without granting a discount within 7 days of the invoice date. The customer shall grant Epsilon a SEPA direct debit mandate for this purpose.

7.6 Offsetting with counterclaims of the customer or the retention of payments due to such claims is only permissible if and insofar as the counterclaims are undisputed, acknowledged or have been legally established.

8 Consequences in the event of late payment

8.1 If the customer is in arrears with the payment of the fee owed by him for more than one month (from the return debit note or expiry of the payment deadline) and if the sum of the outstanding fee claims is more than € 70 net, Epsilon shall be entitled to withhold the M2M services, in particular to temporarily block the SIM cards concerned, until all outstanding fee claims with regard to which arrears have occurred have been met.

8.2 The right to extraordinary termination for an important reason as well as the assertion of damage caused by delay shall remain unaffected.

8.3 Epsilon shall be entitled to charge a flat fee of € 2.50 for reminders. There shall be no obligation to pay a flat fee for the first reminder. The customer reserves the right to prove that no damage has been incurred at all or that the damage is significantly lower than the flat fee.

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

9 Risk assumption, warranty

9.1 In the event that the ordered SIM cards are shipped, the risk of accidental loss or destruction of the SIM cards shall pass to the customer upon proper handover to the shipper.

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 defect within the aforementioned period. The customer shall receive a replacement for each non-functional card. In the event of late notification of defects, Epsilon reserves the right to refuse to replace the cards.

9.3 Epsilon shall not assume any warranty for disruptions of the data exchange or the online portal that are based on a faulty or improper installation of SIM cards by the customer or third parties, or the faulty or improper installation, operation or use of the administration software.

9.4 Epsilon accepts no liability for network availability. Furthermore, Epsilon accepts no liability for radio, atmospheric or geographical interference at the place of use of the respective SIM card.

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

10. Exclusions und limitations of liability

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

• Weather-related, environmental or topographical circumstances; massive (concentrated) use or capacity constraints;
• Restrictions regarding facilities of the network operator;
• Restrictions on third party facilities and/or services;
• Changes, adjustments, upgrades, relocations, repairs, maintenance or similar activities necessary for the proper or optimised functioning of Network Operator Services, 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 im-possibility, delay, defective or incorrect delivery, breach of contract, breach of duties dur-ing contractual negotiations and tort insofar as fault is relevant in each case, shall be limited in accordance with the following paragraphs of this Clause 8.

10.3 Epsilon shall not be liable in the event of simple negligence, unless a breach of essential contractual obligations is involved. Essential contractual obligations are the M2M services in accordance with clause 4.

10.4 Insofar as Epsilon is liable for damages on the merits in accordance with section 10.3, this 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 foreseen by exercising due care. Indirect damages and consequential damages which are the result of a defective performance of the service are also only compensable insofar as such damages are typically to be expected when using the delivery item or the service as intended.

10.5 In the event of liability for simple negligence, Epsilon’s liability to pay compensation for property damage and any further financial losses resulting therefrom shall be limited to one annual net charge for the SIM card concerned per case of damage, insofar as it is not excluded in its entirety in accordance with Clause 10.3.

10.6 The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of Epsilon.

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

11. Incidents, service level

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

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 free service telephone number 0049 800 / 9900 909 as well as via support@fusion-iot.de. In the case of faults received on weekdays (Mondays 08:00 to Fridays 17:00), Epsilon shall rectify the faults within the scope of the existing technical and operational possibilities within 24 hours of receipt of the fault report from the customer. In the case of fault reports received after 17:00 on Fridays, Saturdays, Sundays or public holidays, the fault clearance period shall commence 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 locations 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 the authorities.

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

12.3 Insofar as 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 will be stored and used. The information on the rights of data subjects required under data protection law can be found on the website of Epsilon.

12.4 It is the Customer’s responsibility to take appropriate precautions to safeguard 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 subject to modification / provision of services by subcontractors

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

13.2 Epsilon shall be entitled to make use of third parties for the fulfilment of the contractual performance and to replace such third parties, provided and to the extent that this does not result in any significant disadvantages for the customer.

14 Term / termination

14.1 The term agreed for the M2M service applies. The term of the respective single 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 in due time, the contract is automatically extended by a further 1 month. Termination is possible at the end of the respective extension period with a notice period of 1 months to the end of the respective calendar month.

14.3 If the termination is not intended to affect all SIM cards used by the customer, but only some of them, the termination notice must make it clear which SIM cards are to be covered by the termination in detail by referring 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 obligated 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 a lesser loss has been incurred.

15. Blocking of SIM cards

15.1 Epsilon is entitled to block the SIM cards in question if there are concrete, factual indications that the M2M service is being misused. If it is reasonable for Epsilon to do so, the customer must be given the opportunity to put an end to his abusive usage behaviour before the 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 immediately block the SIM cards concerned.

16. Force majeure

Force majeure, riots, official measures, strikes, lockouts or other unavoidable events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. The customer shall be entitled to extraordinary termination of the contract, including the single contracts, if the disruption of performance lasts at least one week.

17 Choice of Law, 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 juris-diction applies; however, we shall also be entitled to sue the Customer at its place of business.

17.3 The Terms and Conditions shall be written in both German and English. In the event of any need for interpretation, the German version shall be deemed binding.

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 transactions as well as compliance with legal provisions and ethical principles are a matter of course. Furthermore, it is agreed that social commitment as well as climate and environmental protection are important. The client shall ensure that the provisions of the International Labour Organisation (ILO) regarding the rights of employees and their working conditions (such as, in particular, compliance with human rights, prohibition of child and forced labour, minimum standards in the area of occupational health and safety, guarantee of appropriate remuneration) are complied with in connection with the provision of services under the contract.

The parties agree that corruption and bribery must be rejected in every respect. The Client commits to refrain from requesting, accepting, offering or granting unlawful and/or immoral benefits or other advantages. The customer further confirms that none of its employees will 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 in relation to Epsilon or the respective network operator and to refrain from 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.