AGB
Terms
& Conditions of the traplinked GmbH
1. Scope of application
1.1.
These
General Terms and Conditions ("GTC")
apply to the services of traplinked GmbH, Zollhof 7, 90443 Nürnberg ("traplinked" or "we"). traplinked offers its
services exclusively to persons who act in the exercise of their commercial or
independent professional activity (entrepreneurs within the meaning of § 14
German Civil Code [BGB]), to legal entities under public law and special funds
under public law ("Customer"; traplinked and the Customer together
"Parties"); traplinked
does not address its services to consumers.
1.2.
The
GTC shall apply in particular to contracts concerning
● the sale or delivery of movable items
("Goods"), irrespective of whether we manufacture the Goods
ourselves or purchase them from suppliers (§ 433, § 650 German Civil
Code [BGB]; "Sales Contract") or
● the provision of machine-to-machine
data services ("Data Services") by provision of machine-to-machine
SIM cards ("SIM Cards") which can be used in goods supplied by
traplinked and suitable therefor ("traplinked Mobile IoT Device")
and which allow data communication by using selected mobile communication networks
via an access point (Access Point Name); or
● the provision of software for use by
the customer as software as a service (“Saas Contract”).
1.3.
Unless
otherwise agreed, the GTC shall apply in the version available on traplinked’s
website at the time of the order. The GTC incorporated in the last Purchase
Contract or Saas Contract with the Customer shall apply as a framework
agreement without further reference to future similar Sales Contracts or Saas Contracts
with the Customer even if no reference is made to the GTC when such contracts
are concluded.
1.4.
The
GTC of traplinked shall apply exclusively. Deviating general terms and
conditions of the Customer shall only become part of the contract if and
insofar as we have expressly agreed to their validity.
Declarations and notifications of
the Customer regarding the contractual relationship (e.g., setting deadlines,
notification of defects, withdrawal, reduction, termination) shall require
written or text form to be effective.
2.
Offers, Conclusion of contract
2.1.
Our
offers are subject to change and non-binding. This shall also apply if we
provide the customer with product descriptions, data sheets, technical
documentation, calculations, or other information (in electronic or other form)
to which we reserve ownership and copyrights.
2.2.
The
customer's order for the goods or software shall be deemed a binding offer to
enter into a contract with us. Unless otherwise stated in the order, we shall
be entitled to accept this contractual offer within two weeks of its receipt by
us.
2.3.
If
we confirm receipt of the Customer's offer, this confirmation of receipt shall
not constitute acceptance of the Customer's offer.
2.4.
We
may declare acceptance either in writing or text form (e.g., by order
confirmation) or by dispatching the goods to the customer or granting the
possibility of use with respect to the software.
3.
Prices and Advance Payment
3.1.
Unless
we agree otherwise with the Customer, our latest prices at the time of
conclusion of the contract shall apply, ex-warehouse, plus statutory
value-added tax in each case. The Customer shall bear customs duties, fees,
other taxes, and public charges.
3.2.
The
Customer’s payment obligations shall be fulfilled in euros without regard to
any exchange rate fluctuations and without deduction unless we have expressly
agreed on a deduction with the Customer.
3.3.
We
reserve the right to check your creditworthiness by processing the data
provided by you (e.g., company/name, address, date of birth, and bank details)
and using external credit agencies' services.
3.4.
We
are entitled at any time, also within the frame of an ongoing business
relationship, to provide our goods and services in whole or in part only
against advance payment. We will declare a corresponding reservation at the
latest with our order confirmation.
4.
Delays
and Risk of Payment Claims
4.1.
Upon
expiry of a payment deadline or calender-based performance time provision in
accordance with these GTC, the Customer shall be in default without a reminder.
During the default period, the amount of the payment obligation shall be
subject to interest at the applicable statutory default interest rate. We
reserve the right to assert further damage caused by default. Towards merchants
(Kaufleuten), our claim to the commercial due date interest (§ 353 German
Commercial Code [HGB]) shall remain unaffected.
4.2.
If
it becomes apparent after the conclusion of the contract (e.g., by filing for
insolvency proceedings) that our claim for payment is jeopardized by the
customer's inability to pay, we shall be entitled to refuse performance in
accordance with the statutory provisions and – after setting a deadline if
necessary – to withdraw from the contract (§ 321 German Civil Code [BGB]).
5.
Offset and Retention
The Customer shall only be entitled
to rights of set-off or retention to the extent that his claim has been legally
established as final and absolute or is undisputed. In the event of a
contractual non-compliance of our performance, the resulting counterights of
the Customer shall, if they are asserted under the same contractual
relationship, remain unaffected.
6.
Special Performance Obstacles,
Force Majeure
6.1.
The
Covid 19 pandemic, the Russian-Ukrainian war, force majeure and other events
unforeseeable at the time of conclusion of the contract and for which we can not
be held (e.g. non-delivery, incorrect delivery or late delivery by upstream
suppliers despite a covering transaction concluded by us in good time,
disruption in the supply chain [i.e. in one of the steps at home or abroad
which are necessary for the provision of our delivery or service, starting with
the extraction of the raw materials up to the delivery to you], operational
disruptions of any kind, transport delays, strikes, lawful lockouts, shortages
of workforce, energy, primary products or raw materials, pandemics or
epidemics, natural events, war, violence, official measures) and their
respective consequences – all of the above events hereinafter referred to as
"Special Event" - may result in our inability to provide our
deliveries and services in accordance with the contract. If our delivery or
performance is delayed or temporarily prevented by a Special Event, we shall
immediately notify you without undue delay upon becoming aware of the Special
Event and the existence of a resulting impediment to performance and its
expected duration, and our obligation to perform shall be postponed for the
duration of such impediment to performance. In the event of such a postponement
of our obligation to perform, your obligation to pay the remuneration for the
postponed deliveries and services shall be postponed simultaneously.
6.2.
If
the impediment to performance under Section 6.1 is not merely a temporary
impediment to performance, you and/or we shall be entitled to withdraw from the
contract or terminate the contract; an impediment to performance which is not
merely temporary shall be deemed to exist if the impediment to performance
lasts longer than three months in the case of the delivery of goods, or longer
than three weeks in the case of a Saas Contract or a contract for Data Services.
§ 323 para. 4 to 6 German Civil Code (BGB)
shall apply accordingly.
6.3.
Insofar
as you have made an advance payment for deliveries and services covered by your
withdrawal or termination due to the impediment to performance, according to
Section 6.1, it is clarified that we will return this advance payment to you.
6.4.
In
the event of a withdrawal or termination due to an impediment to performance,
according to Section 6.1, claims for damages shall be excluded.
6.5.
Any
right of withdrawal or termination of the customer arising prior to the
occurrence of the Special Event or arising independently of the occurrence of
the Special Event shall remain unaffected.
7.
Liability and limitations of
liability
7.1.
We
shall be liable for damages based on an intentional or grossly negligent breach
of duty by one of our legal representatives or vicarious agents.
7.2.
We
shall furthermore be liable for damages resulting from injury to life, body, or
health which are based on an intentional or negligent breach of duty by one of
our legal representatives or vicarious agents.
7.3.
In
all other respects, liability for damages based on a negligent breach of duty
or a negligently committed tortious act by one of our legal representatives or
vicarious agents shall be excluded unless material obligations are breached,
compliance with which is required to achieve the purpose of the contract or
which arise from justified reliance on special trust (cardinal obligations). In
these exceptional cases, our liability shall be limited to compensation for
foreseeable damage.
7.4.
Liability
under the German Product Liability Act (ProdHaftG) and from the assumption of a
guarantee for the quality (Beschaffenheit) of an item or a procurement risk and
liability from the fraudulent concealment of a defect shall remain unaffected.
7.5.
We
shall not be liable to our Customer for damages that are asserted by a third
party against our Customer under foreign law and the assertion of which is
obviously incompatible with the principles of German law (ordre public). This
shall apply in particular to the assertion of "punitive damages”.
7.6.
The
above rules shall also apply in favor of our legal representatives or our
employees for claims directly directed against them.
7.7.
You
are obliged to indemnify us against all claims of third parties arising from
applicable product liability regulations and based on your conduct after the
passing of risk, for example, how the goods are presented, unless you have not
acted at least negligently.
8.
Assignment
An assignment of customer claims
against traplinked to a third party requires the prior consent of traplinked. § 354a para. 1 German Commercial Code (HGB) remains unaffected.
9.
Reference
traplinked shall be entitled free of
charge to use the name or the company of the Customer and, if applicable, the
Customer's logo as well as texts approved by the Customer (also in a version
subsequently translated by traplinked) and graphical material as a customer
reference (e.g., on traplinked's website, in offers, reference or user reports,
in other marketing and sales activities, in the press and public relations
work, in other materials, illustrations, and presentations of traplinked). The
Customer may revoke the authorization with a notice period of one month to the
end of the month. A revocation for good cause shall remain unaffected. If the
Customer has revoked the authorization, traplinked may use up already produced
print products, which name the Customer as a reference, within a reasonable
period despite the revocation.
10.
Partial invalidity
Should any provision of the contract
be or become invalid in whole or in part, or should the contract contain
loopholes, this shall not affect the validity of the remaining provisions.
11.
Applicable
law and place of jurisdiction
11.1.
All
legal relationships arising from or in connection with this contract shall be
governed exclusively by the laws of the Federal Republic of Germany, excluding
the UN Convention on Contracts for the International Sale of Goods (CISG).
11.2.
If
the contract is concluded in electronic business transactions and not by
personal communication, § 312i para. 1 sentence 1 no. 1 to no. 3 German Civil
Code (BGB) shall not apply.
11.3.
If
the Customer has its registered office or a branch office in the Federal
Republic of Germany and the Customer is a merchant (Kaufmann), a legal entity
under public law, or a special fund under public law, the local jurisdiction of
the court having jurisdiction for the registered office of traplinked shall be
agreed for all disputes arising from or in connection with this contract.
11.4.
If
the Customer relocates his registered office outside the Federal Republic of
Germany after the conclusion of the contract, the international jurisdiction of
German courts and the local jurisdiction of the court having jurisdiction for
the registered office of traplinked shall be agreed upon for all disputes
arising from or in connection with this contract - even if the Customer is not
a merchant (Kaufmann), a legal entity under public law or a special fund under
public law.
11.5.
If
the Customer does not have a registered office or a branch office in the
Federal Republic of Germany at the time of the conclusion of the contract, the
international jurisdiction of German courts and the local jurisdiction of the
court having jurisdiction for the registered office of traplinked shall be
agreed for all disputes arising from or in connection with this contract.
11.6.
The
jurisdiction, according to Section 11.4 and Section 11.5, shall be exclusive;
however, traplinked shall also be entitled to sue the Customer at its generally
applicable place of jurisdiction in the cases mentioned therein.
12.
Special
Terms and Conditions for the Sale of Goods
12.1.
Product configuration with Wifi data
of the customer
If the Customer orders Goods which
the Customer intends to connect to an existing Wifi network after delivery, the
Customer may provide traplinked with the access data of this Wifi network (SSID
and Wifi password) with his order. traplinked shall then configure the
respective Goods as a service without additional remuneration on the basis of
the access data provided and deliver them with this configuration to the
Customer. If the legal regulations for the configuration should provide for a
formal acceptance according to the type of service provided, no formal
acceptance shall take place; in this case, the acceptance shall be deemed to
have taken place with the first successful connection of the product to the
WLAN network with the access data provided by the Customer, if the Customer
does not object to the effect of acceptance within two weeks after this point
in time, stating reasons.
12.2.
Terms of payment for the sale of Goods
12.2.1.
A
purchase price payment obligation of the Customer is due and payable within 10
days from the date of invoice and delivery and/or acceptance of the goods
unless the customer has selected a payment method when ordering in the online
store, which leads to an earlier due date and payment (e.g., advance payment,
immediate transfer, credit card).
12.2.2.
In
the case of a Shipment Purchase within the meaning of Section 12.4.1, the Customer
shall bear the shipping and transport costs ex-warehouse and the costs of any
transport insurance taken out by us after agreement with the customer.
12.3.
Delivery period and delay in
delivery
12.3.1.
A
binding delivery period shall require an individual agreement. If no binding
delivery period has been agreed, the non-binding delivery period shall be
approx. two weeks from the conclusion of the contract, in the case of delivery
of the goods against advance payment from the complete fulfillment of the
customer's payment obligation.
12.3.2.
The
occurrence of our delay in delivery shall be determined in accordance with the
statutory provisions except in the case of a Special Event. In any case,
however, a reminder by the Customer shall be required, and the default shall
occur as a result of the reminder at the earliest upon expiry of the delivery
period within the meaning of Section 12.3.1. If we are in delay with delivery,
the Customer may demand lump-sum compensation for the damage caused by the
delay. The lump-sum compensation shall amount to 0.5% of the net price ("Delivery Value") for each full
calendar week of the delay, but in total not more than 5% of the Delivery Value
of the Goods delivered late. We reserve the right to present evidence that the Customer
has incurred no damage at all or only a significantly lower damage than the
aforementioned lump sum.
12.4.
Delivery, Partial Delivery, Transfer
of Risk, Acceptance, Default of Acceptance
12.4.1.
Delivery
shall be made ex-warehouse, which is also the place of performance for the
delivery and any subsequent performance (Nacherfüllung). At the customer’s
request and expense, the Goods shall be shipped to another destination ("Shipment
Purchase” [Versendungskauf]). Unless otherwise agreed, we shall be entitled to
determine the type of shipment (in particular transport company, shipping
route, packaging) ourselves.
12.4.2.
Our
obligation to deliver shall be suspended as long as you are in default with a due
payment to us.
12.4.3.
We
are entitled to render partial performance insofar as this is reasonable for
you, taking into account your interests, the partial performance can be used
for the intended purpose, the remaining performance is not impossible, and you
do not incur any significant additional expenses or costs as a result of the
partial performance unless we declare that we bear such additional expenses or
costs. This shall not affect the provisions governing withdrawal from the
contract on the part of you due to non-contractual performance on our part or
the retention of counter-performance by you.
12.4.4.
The
risk of accidental loss and accidental deterioration of the Goods shall pass to
the Customer at the latest upon handover. However, in the case ofShipment
Purchase , the risk of accidental loss and accidental deterioration of the Goods
as well as the risk of delay, shall pass to the Customer upon dispatch of the Goods
to the forwarding agent, the carrier or any other person or institution
designated to carry out the shipment; this shall also apply to all Goods that
are shipped to the Customer after a configuration pursuant to Section 12.1.
Insofar as the performance of an acceptance has been agreed, this shall be
decisive for the transfer of risk. The statutory provisions of the law on
contracts for work (Werkvertragsrecht) shall apply mutatis mutandis to an
agreed acceptance in all other respects in addition. It shall be deemed
equivalent to handover or acceptance if the Customer is in default of
acceptance (Annahmeverzug).
12.4.5.
If
the Customer is in default of acceptance (Annahmeverzug), fails to cooperate,
or if our delivery is delayed for other reasons for which the customer is
responsible, we shall be entitled to demand compensation for the resulting
damage, including additional expenses (e.g. storage costs). In this case, we will
charge a lump-sum compensation for each completed calendar week of the delay in
acceptance (Annahmeverzug) amounting to 0.5% of the Delivery Value, however,
not exceeding a total of 5% of the Delivery Value of the Goods with the
acceptance of which the Customer is in default.
12.4.6.
The
proof of greater damages and our statutory claims (in particular compensation
for additional expenses, reasonable compensation, termination) shall remain
unaffected; however, the lump-sum compensation pursuant to Section 12.4.5 shall
be credited against further monetary claims. The Customer shall be entitled to
prove that we have incurred no damage at all or only less damage than the
aforementioned lump sum.
12.5.
Retention of title
12.5.1.
We
reserve title to the Goods sold until full payment of all our present and
future claims arising from the purchase contract and an ongoing business
relationship (secured claims).
12.5.2.
The
Goods subject to retention of title may neither be pledged to third parties nor
assigned as security before full payment of the secured claims. The Customer has
to notify us immediately in writing if an application is made to open
insolvency proceedings or if third parties have access (e.g., through seizures,
attachments) to the Goods belonging to us.
12.5.3.
In
the event of a breach of contract by the Customer, in particular in the event
of non-payment of the purchase price due, we shall be entitled to withdraw from
the contract in accordance with the statutory provisions and/or to demand the return
of the Goods on the basis of the retention of title. The demand for a return
does not at the same time include the declaration of withdrawal; we are rather
entitled to demand only the return of the Goods and to reserve the right of
withdrawal. If the Customer does not pay
the purchase price due, we will only assert these rights if we have previously
set the Customer a reasonable deadline for payment without success or if
setting such a deadline is dispensable under the statutory provisions.
12.5.4.
The Customer is, until revoked in accordance
with the following subpara. (c) below, authorised to resell and/or process the Goods
subject to retention of title in the ordinary course of business and/or to use
them for the provision of services to third parties. In this case, the
following provisions shall apply in addition:
a.
The
retention of title shall extend to the products resulting from the processing,
mixing, or combining of our Goods at their full value, whereby we shall be
deemed to be the manufacturer. If, in the event of processing, mixing or
combining with goods of third parties, their right of ownership remains, we
shall acquire co-ownership in proportion to the invoice values of the
processed, mixed or combined goods. In all other respects the same shall apply
to the resulting product as to the Goods delivered under retention of title.
b.
The
claims against third parties arising from the resale of the Goods or the
product or from the provision of services to third parties using the Goods are
herewith assigned to us by the Customer in their entirety or in the amount of
our co-ownership share, if any, pursuant to subpara. (a) above by way of
security. We accept the assignment. The obligations of the Customer set out in Section
12.5.2 shall also apply in respect of the assigned claims.
c.
The
Customer remains authorized to collect the claim in addition to us. We will not
collect the claim as long as the Customer meets its payment obligations towards
us, there is no deficiency in its ability to pay and we do not assert the
retention of title by exercising a right pursuant to Section 12.5.3. If this is
the case, however, we may demand that the Customer informs us of the assigned
claims and their debtors, provides all information necessary for collection,
hands over the relevant documents and informs the debtors (third parties) of
the assignment. Furthermore, in this case we shall be entitled to revoke the Customer’s
authorization to further sell, process and use the goods subject to retention
of title.
d.
If
the realizable value of the securities exceeds our claims by more than 10%, we
shall release securities of our choice at the Customer’s request.
12.6.
Condition, notice of defect,
warranty
12.6.1.
The
statutory provisions shall apply to the Customer's rights in the event of
defects (including wrong and short delivery as well as improper
assembly/installation or defective instructions), unless otherwise provided
below. In all cases, the statutory provisions on the sale of consumer goods (§§
474 et seq. German Civil Code [BGB]) shall remain
unaffected.
12.6.2.
The
basis of our warranty for defects shall be, above all, the agreement made on
the quality (Beschaffenheit) and the presumed use (vorausgesetzte Verwendung) of
the Goods (including accessories and instructions). All product descriptions
and manufacturer's specifications (e.g. in catalogs or on our internet pages)
which have expressly become part of our contract with you or which have been
publicly announced by us at the time of conclusion of the contract and
expressly designated as binding shall be deemed to be an agreement on the
quality of the Goods. Deviations of the goods from product descriptions,
manufacturer's specifications or other public statements, which have not become
an agreement on quality according to sentence 1, as well as insignificant
deviations of the goods from a sample provided by us, shall not constitute a
deviation from the objective requirements of the Goods and shall not constitute
a defect.
12.6.3.
If
the Goods are a rechargeable battery or if the Goods contain a rechargeable
battery, we normally deliver the rechargeable battery in an almost fully
charged state. However, a lower charge level (e.g. due to weather conditions,
delivery time or other reasons) shall not constitute a defect of the Goods.
12.6.4.
In
the case of Goods with digital elements or other digital content, we owe
provision and, if applicable, updating of the digital content only insofar as
this expressly results from a quality agreement pursuant to Section 12.6.2. In
this respect, we shall not assume any liability for public statements made by
the manufacturer and other third parties.
12.6.5.
The
assumption of a guarantee (Garantie) or assurance of characteristics or quality
(Eigenschafts- bzw. Beschaffenheitszusicherung) by us (in particular concerning
a quality of the Goods) requires an express written guarantee or assurance
declaration on by us.
12.6.6.
Irrespective
of the existence of a commercial purchase (Handelskauf), the rules of §§ 377,
381 German Commercial Code (HGB) on the customer's duty to inspect and give
notice of defects with regard to Goods delivered to him shall apply.
Accordingly, you are obliged to inspect the Goods immediately after handover or
delivery, insofar as this is feasible in the ordinary course of business (in
the case of Goods intended for installation or other further processing, in any
case before processing), and to notify us immediately of any defect which
becomes apparent thereby. If you neglect to notify us, the Goods shall be
deemed to have been approved, unless the defect was not recognizable during the
inspection. If such a defect becomes apparent at a later date, you must notify
us immediately after discovery of the defect; otherwise the Goods shall be
deemed to have been approved also in view of this defect. In order to preservei
your rights, however, it is sufficient if you send the notice of defect in good
time. We shall not be entitled to invoke the above agreement if we have
fraudulently concealed a defect.
12.6.7.
If
you demand subsequent performance from us due to a defect, we shall be entitled
to determine the type of subsequent performance (repair or subsequent
delivery). This shall not apply if we have fraudulently concealed the defect,
have given a guarantee for the quality affected by the defect or the type of
subsequent performance chosen by us would be unreasonable for you. Our right to
refuse subsequent performance under the statutory provisions remains
unaffected.
12.6.8.
In
the event of subsequent delivery, the Customer shall return the defective goods
to us at our request in accordance with the statutory provisions; however, the Customer
shall not have a right to return.
12.6.9.
We
shall be entitled to make the subsequent performance owed subject to the Customer
paying the purchase price due. However, the Customer shall be entitled to
retain a reasonable part of the purchase price in consideration of the defect.
12.6.10.
The
expenses necessary for the purpose of remedying the defect, in particular
transport, travel, labor, and material costs, shall be borne by us only to the
extent that they are not increased by the fact that the Goods or the work have
been taken to a place other than the place of performance unless this is in
accordance with the intended use of the Goods or the work.
12.6.11.
Claims
of the Customer for reimbursement of expenses pursuant to § 445a para. 1
German Civil Code (BGB) shall be excluded unless the last contract in the
supply chain is a consumer goods purchase (§ 478, § 474 German Civil
Code [BGB]) or a consumer contract for the provision of digital products (§ 445c
sentence 2, § 327 para. 5, § 327u of the German Civil Code [BGB]).
Claims of the Customer for damages or reimbursement of futile expenses (§ 284 German
Civil Code [BGB]) shall even in the event of defects of the Goods only exist in
accordance with Section 12.7 and Section 7.
12.7.
Statute of Limitations
12.7.1.
Deviating
from § 438 para. 1 no. 3 German Civil Code (BGB), the general limitation period
for claims arising from defects shall be one year from delivery. Insofar as it
is agreed that acceptance is required, the limitation period shall commence
upon acceptance. The above limitation period shall also apply to the Customer’s
non-contractual claims for damages based on a defect in the Goods, unless the
application of the regular statutory limitation period (§§ 195, 199 BGB) would
lead to a shorter limitation period in the individual case.
12.7.2.
The
limitation periods pursuant to § 438 para. 1 no. 1, para. 3 German Civil Code (BGB)
shall remain unaffected by Section 12.7.1.
12.7.3.
Section
12.7.1 shall not apply if the claim is based on an intentional or grossly
negligent breach of duty, the assumption of a guarantee for the quality (Beschaffenheit)
of an item, a fraudulent concealment of a defect or if it is a claim for
damages arising from injury to life, body or health or under the German Product
Liability Act (ProdHaftG).
12.7.4.
Section
12.7.1 shall also not apply to the extent that you can assert a claim against
us pursuant to §§ 445a, 445b German Civil Code (BGB; recourse of the
seller in the supply chain). Sentence 1 shall not apply to claims for damages.
13.
Special
Terms and Conditions for Data Services
13.1.
Separate Contracts
If the Customer orders a product
with SIM card or a separate SIM card and traplinked accepts the offer, a
separate contract for Data Services is concluded for each such SIM card.
13.2.
Service Content, Scope of Services
and Provision of Services
13.2.1.
traplinked
provides the Data Services with the involvement of a machine-to-machine data
service provider selected by traplinked at its own discretion.
13.2.2.
The
provision of the Data Services shall commence upon activation of the respective
SIM card after its delivery to the Customer (“Data Service Commencement”).
13.2.3.
If
the management of the SIM cards is not carried out by traplinked, traplinked
may instead provide the Customer with access to a SIM management portal in
which the Customer activates and blocks the SIM cards itself under its own
responsibility.
13.2.4.
The
use of the Data Services with the SIM cards is limited to the available mobile
networks and respective network capacities.
13.2.5.
The
contract for the Data Services does not establish a contract between the Customer
and the machine-to-machine data service provider or the network operator.
13.2.6.
We
are not obligated to ensure network availability at the place of use of the SIM
card or the traplinked Mobile IoT Device or to remedy radio, atmospheric, or
geographical disruptions at the place of use.
13.2.7.
We
may change the Data Services and, if applicable, the SIM management portal, if
and to the extent that this is necessary to comply with statutory or regulatory
requirements or for technical reasons or the change does not conflict with the
interests of the Customer. We will notify the Customer of any changes with a reasonable
notice period, unless the change must be implemented promptly due to legal or
regulatory requirements.
13.2.8.
The
SIM cards supplied remain the property of the respective network operator and will
only be provided for use within the scope of the contract for Data Services.
13.3.
Obligations of the customer
13.3.1.
The
Customer may only use the SIM card for establishing machine-to-machine data
transmission connections, not for other telecommunication services (such as
general voice services, web browser services, music downloads) and only in
traplinked Mobile IoT Devices.
13.3.2.
traplinked
shall be entitled to ensure compliance with the provisions of Section 13.3.1 by
linking the SIM card to the Goods (e.g. by appropriate configuration).
13.3.3.
It
is the Customer’s responsibility to check the network availability at the place
of use of the SIM card or the traplinked Mobile IoT Device and/or to exclude
radio, atmospheric or geographic interference at the place of use.
13.3.4.
The
Customer shall be obliged to cooperate insofar as this is necessary for the
proper establishment and maintenance of the functionality of the Data Service
and is reasonable for the Customer.
13.3.5.
The
Customer shall handle the SIM Cards provided to it properly and with care,
protect them from harmful influences, improper handling or unauthorized use,
and store them carefully and securely. The Customer shall immediately notify
traplinked of any loss, theft and any recognizable defect or damage to a SIM
card.
13.3.6.
The
Customer shall not use the SIM card without authorization. Unauthorized use means
in particular,
a. if the Customer obtains access to
information of other network users without authorization, changes such
information or disturbs the access of other network users. This shall apply to
the same extent in the event of an attempt or the assistance of a third party
in such an act;
b. if the Customer establishes
unauthorized connections to other networks or makes changes to these
connections;
c. if the Customer uses the Data
Service for a fraudulent scheme, for manipulation by intentional
misrepresentation or for criminal conduct;
d. if the Customer intentionally and
fraudulently uses or manipulates the Data Service in such a way that agreed
charges cannot be billed or cannot be billed correctly;
e. if the Customer uses the Data
Service in a way that deliberately disrupts the quality of the services offered
or of the mobile network used or deliberately impairs use by other network
subscribers;
f. if the use is for the transmission
of obscene, pornographic, insulting or other illegal information;
g. if the customer uses the Data
Service to transmit and/or store copyright-protected content without the Customer
having the necessary rights to do so.
13.3.7.
If
traplinked provides the Customer with access data to a SIM management portal,
the Customer shall be obliged to comply with the terms and conditions of use of
the SIM management portal and to protect the access data to the SIM management
portal provided to the Customer against unauthorized use and unauthorized
access by third parties.
13.3.8.
The
Customer undertakes to indemnify traplinked, the machine-to-machine data
service provider and the network operator against any claims by third parties,
provided that such claims are not the responsibility of traplinked, the machine-to-machine
data service provider or the network operator and are based on the use of a SIM
card by the Customer, the Customer’s vicarious agents or the Customer’s client.
13.3.9.
If
the contract for Data Servics ends, the Customer shall, upon traplinked’s
request, return the respective SIM card to traplinked or destroy it at Customer’s
own expense.
13.4.
Payment obligation and payment terms
for data services
13.4.1.
Irrespective
of the agreement on a one-time payment for the provision of the SIM card by
traplinked, the Customer shall pay an ongoing fee (“Data Service Fee”) to
traplinked for each SIM card.
13.4.2.
traplinked’s
claim to the Data Service Fee for the SIM card shall arise monthly in advance,
for the first time with the Data Service Commencement . The Data Service Fee shall
be paid on the day it is incurred.
13.4.3.
The
customer shall issue a SEPA direct debit mandate for the payment of the Data
Service Fee or agree to the repeated debiting of his credit card.
13.4.4.
If
the network operator increases the (roaming) charges vis-à-vis traplinked
compared to their amount at the time of conclusion of the contract for Data
Services between traplinked and the Customer, traplinked shall be entitled to
pass on the increase to the Customer.
13.5.
Further consequences of default in payment
13.5.1.
If the Customer is in default of payment of a Data Service Fee for more
than two weeks, we shall be entitled to withhold the Data Services, in
particular to temporarily block the SIM cards, until all outstanding fee claims
with regard to which default has occurred have been settled.
13.5.2.
Charges
in connection with the Data Services that are not calculated on the basis of
usage (but, for example, on the basis of time) must also be paid by the Customer
during the period of retention or blocking pursuant to Section 13.5.1.
13.5.3.
Our
right to terminate for cause and to claim further damages for default remains
unaffected.
13.6.
Warranty
13.6.1.
We
do not assume any warranty for faults in data exchange in connection with the
relevant SIM card or the relevant traplinked Mobile IoT Device, insofar as the
fault is due to faulty or improper installation or insertion of the SIM card
and we or one of our upstream suppliers did not install or insert the SIM card
in the traplinked Mobile IoT Device or insofar as the faults are due to faulty
or improper operation or use of the SIM management portal by the customer.
13.6.2.
We
do not assume any warranty for transmission restrictions or interruptions of
the Data Services due to
a. weather-related, environmental or
topographical circumstances;
b. massive (concentrated) use or
capacity limitations of the network operator;
c. limitations with respect to
facilities and/or services of the machine-to-machine data service provider or
the network operator;
d. changes, adjustments, upgrades,
relocations, repairs, maintenance or similar activities required for proper or
optimized functioning of the network operator’s facilities and/or services
and/or the facilities and/or services of third parties.
13.6.3.
We
do not assume any warranty for network availability. Furthermore, we do not
assume any warranty for radio-technical, atmospheric or geographically caused
disturbances at the place of use of the respective SIM card.
13.7.
Malfunctions, Service Level
13.7.1.
The
Customer shall notify traplinked without delay of any disruptions of the Data
Services or, if applicable, of the SIM Management Portal.
13.7.2.
If
there is a malfunction of a SIM management portal of traplinked or of the
machine-to-machine data service provider, the malfunction shall be remedied
within the scope of the existing technical and operational possibilities. In
the case of malfunctions reported between 8 a.m. on Mondays and 12 p.m. on
Fridays (excluding public holidays in Bavaria (Germany)), the malfunctions will
be remedied within 26 hours of receipt of the malfunction report from the
Customer. In the case of malfunctions reported between 12 noon on Fridays and 8
a.m. on Mondays, the fault will be rectified within 26 hours from 8 a.m. on
Monday. In the case of faults reported on public holidays in Bavaria (Germany),
the fault shall be rectified within 26 hours from 8 a.m. on the following day
which is not a Saturday, Sunday or public holiday in Bavaria (Germany).
13.8.
Statute of Limitations
Deviating from the statutory
provisions, claims of the Customer against traplinked arising from or in
connection with a contract for Data services shall become statute-barred two
years after the end of the year in which the claim arose and the Customer
became aware or should have become aware of the circumstances giving rise to
the claim and the identity of the debtor, at the latest, however, five years
after the claim arose, unless the claim is based on an intentional or grossly
negligent breach of duty, results from the assumption of a guarantee for the
quality (Beschaffenheit) of an item or from the fraudulent concealment of a
defect or is for compensation for damages arising from injury to life, body or
health.
13.9.
Terms and Termination of Data
Services
13.9.1.
The
term of a contract for Data Services begins exactly at the Data Service Commencement
and shall be one month. The term of a contract for Data Services prolongs for one
month each time if the contract is not terminated before the end of the term
applicable up to that point.
13.9.2.
A
one-month term pursuant to Section 13.9.1 shall end on the day which
corresponds by its number to the day of the Data Service Commencement, namely
at the time of the Data Service Commencement.
13.9.3.
§§ 187
to 193 German Civil Code (BGB) shall not apply to the periods pursuant to this
Section 13.9. This shall not apply to § 188 para. 3 German Civil
Code (BGB), which shall be applicable.
13.9.4.
If
the termination is not intended to affect all SIM cards used by the customer,
but only one or more of them, it shall be made clear in the termination notice,
with reference to the respective SIM card numbers, which SIM cards are to be
covered by the termination.
13.9.5.
If
traplinked has provided the Customer with access to a SIM management portal,
the right to use the SIM management portal shall end as soon as the last contract
for Data Services ends.
13.9.6.
The
right to terminate for good cause remains unaffected. Good cause shall be
deemed to exist in particular if (a) the Customer (i) is in default with the
payment of the Data Service Fee for two consecutive payment dates or (ii) is in
default with the payment of the Data Service Fee in a period extending over
more than two payment dates in an amount equal to the Data Service Fee for two
months, and (b) the sum of the outstanding Data Service Fee claims exceeds EUR
70.00 plus value added tax.
13.9.7.
In
case of termination for cause by traplinked, the Customer shall remain
obligated to pay the agreed monthly fees until the expiration of the next
permissible ordinary termination option. The Customer shall have the right to
prove that traplinked has suffered a lesser damage.
13.10.
Blocking of SIM cards
13.10.1.
We
or the machine-to-machine data service provider shall be entitled to block a
SIM card if there are concrete, factual indications that the data service is
being misused with the aid of the SIM card concerned. Prior to an intended
blocking, the Customer shall be given the opportunity to stop his abusive usage
behavior, insofar as this is reasonable for us and the machine-to-machine data
service provider.
13.10.2.
A
block shall not release the Customer from the obligation to pay the agreed
monthly fees.
13.10.3.
In
the event of termination of the contract for Data Service for good cause, we
and the machine-to-machine data service provider shall be entitled to block the
SIM card concerned immediately.
13.11.
Corresponding application of the
Special Conditions for the Sale of Goods
Unless otherwise agreed pursuant to Section
13.1 to 13.10, the provisions of Section 12.2 to 12.7 shall apply mutatis
mutandis to the provision of Data Services by traplinked.
13.12.
Corresponding application of the
Provider Conditions
Unless otherwise agreed pursuant to Section
13.1 to Section 13.11, the terms and conditions of the contract concluded by
traplinked with the relevant machine-to-machine data service provider regarding
the SIM card ("Provider Terms and Conditions") shall apply
mutatis mutandis to the contract for Data Services. The Provider Terms and
Conditions can be made available to the Customer at any time.
14.
Special
Terms and Conditions for Saas Contracts
14.1.
Contract Software
14.1.1.
The
goods offered by traplinked may in part be integrated by the Customer into a
radio network (the respective goods hereinafter: "traplinked IoT Device"). A Long Range Wide Area Network
(LoRaWAN) or a radio network based on the IEEE 802.11 standard can be used as radio
network. traplinked does not provide the radio network, but the provision and
functioning of the corresponding radio network as well as the integration of
the corresponding traplinked IoT Devices into the radio network are the sole
responsibility of the Customer.
14.1.2.
traplinked
has software which is suitable for managing traplinked IoT Devices sold by
traplinked to the Customer and integrated by the Customer into a radio network
in accordance with Section 14.1.1 ("Contract Software").
14.2.
Conclusion of the Saas Contract,
Provision and Right of Use
14.2.1.
traplinked
makes the use of the Contract Software available without being legally bound to
do so in the respective current version on one or more central data processing
systems ("Server"). Upon the
Customer has registered with traplinked as a user of the Contract Software
("Registration"), the Saas Contract is concluded between the
Customer and traplinked and traplinked enables the Customer to use the Contract
Software as Software as a Service via a telecommunications connection. The use
can be enabled to the Customer via a smartphone / tablet application ("Native
App") or via log-in via an internet page of traplinked (until further
notice https://app.traplinked.com/login) ("Web App"). The Customer shall obtain the Native App
exclusively for end devices with Android operating system via the Google
Playstore or for end devices with Apple iOS operating system via the Apple
Appstore.
14.2.2.
The
delivery point for the Contract Software to the Customer shall be the router
exit of the data center on whose Server traplinked keeps the Contract Software
ready. traplinked owes the contractual technical usability of the Contract
Software at the delivery point.
14.2.3.
An
installation of the Contract Software or a copy of the Contract Software on IT
systems of the Customer shall not take place subject to the installation of the
Native App. The provision of a user manual or other instructions shall not be
owed by traplinked.
14.2.4.
The
establishment and maintenance of the telecommunication connection between the
IT systems of the Customer and the delivery point as well as the security,
confidentiality and integrity of this telecommunication connection, shall be
the responsibility of the Customer and shall not be owed by traplinked. The
same applies to hardware and software other than the Native App or Web App, which
the Customer requires for the use of the Contract Software.
14.2.5.
With
the provision of the contractual services, no intellectual property rights and
no industrial property rights of traplinked or third parties shall be
transferred to the Customer by traplinked. traplinked shall, however, grant the
Customer a right of use to such rights of traplinked to the extent necessary
for the contractual use of the Contract Software by the Customer via a
telecommunications connection. This right of use of the Customer is
non-exclusive, non-transferable, non-sublicensable, is limited to the contract
term, and entitles the Customer only to use the Contract Software for its own
purposes. The above scope of the right of use shall apply to all versions of
the Contract Software made available to the Customer during the term of the
Agreement.
14.2.6.
All
contractual services of traplinked may be provided in German or English, at
traplinked's option. traplinked shall not be obliged to provide services in any
other language; to the extent that traplinked provides contractual services in
French, Dutch, Portuguese or Spanish at the Customer's desire, such provision
of services shall have the effect of performance.
14.3.
Offered Functionalities
14.3.1.
The
basic functionalities of the Contract Software enable the documentation of the
location of the traplinked IoT Devices, the monitoring of the operating status,
the quality of the wireless connection and the battery charge status of the
traplinked IoT Devices, the viewing and evaluation of data transmitted by the
traplinked IoT Devices (e.g. image data) and the management of the users (e.g.
employees of the Customer) of the Contract Software deployed by the Customer
("Basic Functionalities").
14.3.2.
In
addition to the Basic Functionalities, the Premium Functionalities of the
Contract Software include automatic notification of the operating status of the
traplinked IoT Devices by push message to a smartphone or by e-mail to users of
the Contract Software who are deployed by the Customer, the location management
of traplinked IoT Devices using building floor plans loaded into the Contract
Software by the Customer in common file formats (i.e. pdf, png, jpg, jpeg and,
if the Web App is used, also heic or heif), the export of certain data managed
in the Contract Software in the file formats csv, xls or pdf, additional
functionalities for the evaluation of data transmitted by traplinked IoT
Devices and the computer-aided evaluation of image data transmitted by
traplinked IoT Devices ("Premium
Functionalities").
14.3.3.
The
Contract Software also enables, via an interface, the transfer of data
transmitted by traplinked IoT Devices into certain software offered by third
parties (namely Pestsoft, PestScan, Keetex and HYGiTEC; "Interface Functionality");
traplinked does not provide the third party software, but the provision and
functioning of the third party software is solely the responsibility of the
Customer).
14.4.
Owed Functionalities, Term and Termination
14.4.1.
Starting
with the initial Registration of the Customer, traplinked shall provide the
Customer the Contract Software once
- for a period of exactly three
months from the Registration with the Premium Functionalities ("Start Period Premium Functionalities")
and
- for a period of exactly one month from
the registration with the Interface Functionality ("Start Period
Interface Functionality")
for use without the Customer owing
any remuneration for this. The start periods pursuant to sentence 1 shall not
apply if the Customer's registration was already at least three months ago when
sentence 1 was first agreed between us and the Customer. If the Customer has
already been registered at the time of the first agreement of sentence 1
between us and the Customer, but his registration was less than three months
ago, the Start Period Premium Functionalities and the Start Period Interface Functionality
shall each be shortened by the time between the Customer’s registration and the
first agreement of sentence 1. After the expiry of the respective start period
or insofar as the respective start period does not apply, we will make the
Contract Software with the Basic Functionalities available to the Customer without
the Customer owing any remuneration for this.
14.4.2.
The
Customer may, by declaration to traplinked, which requires acceptance by
traplinked, change at any time from the use of the Contract Software with the
Basic Functionalities to the use of the Contract Software with the Premium
Functionalities ("Upgrade Declaration Premium Functionalities")
and/or change to the use of the Contract Software with the Interface Functionality
("Upgrade Declaration Interface Functionality").
The Customer shall owe traplinked a fee for any use of the Contract Software
with the Premium Functionalities outside the Start Period Premium
Functionalities and/or with the Interface Functionality outside the Start
Period Interface Functionality.
14.4.3.
With
regard to the Premium Functionalities, the remuneration arises on a time-dependent
basis, whereby the Customer may choose between monthly and annual payment. With
respect to the Interface Functionality, the remuneration arises monthly per
traplinked IoT Device that the Customer has managed via the Contract Software
during the relevant month and a monthly payment method shall apply.
14.4.4.
If
a monthly payment method applies, the term of the contract on the Premium
Functionalities or the Interface Functionality shall be one month in each case
and prolongs for one month each time if the Agreement on the Premium
Functionalities or the Interface Functionalities, respectively, is not
terminated before the end of the term applicable until then or, in the case of
the Premium Functionalities, is changed to the annual payment method. It is
clarified that the Premium Functionalities and the Interface Functionality can
be terminated separately. If the Customer chooses the annual payment method for
the Premium Functionalities, the term of the contract for the Premium
Functionalities shall be one year and prolongs for one year each time if the
contract for the Premium Functionalities is not terminated or changed to the
monthly payment method before the end of the term applicable until then. In the
event of termination of the Premium Functionalities or the Interface Functionality,
the Customer may in any case continue to use the Contract Software with the
Basic Functionalities without the Customer owing any remuneration therefor.
14.4.5.
A
term pursuant to Section 14.4.4 commences exactly with the respective upgrade
declaration. Notwithstanding the foregoing, the term commences at the end of
the respective start period if the upgrade declaration is made before the end
of the respective start period.
14.4.6.
Periods
to be calculated in months pursuant to Section 14.4.1 and Section 14.4.4 shall
end on the day which corresponds by its number to the day of commencement of
the start period or the day of the upgrade declaration, respectively, namely at
the time of commencement of the start period or the upgrade declaration,
respectively.
14.4.7.
§§ 187
to 193 of the German Civil Code (BGB) shall not apply to the time limits
pursuant to this Section 14.4. This shall not apply to § 188 para. 3 German
Civil Code (BGB), which shall apply.
14.4.8.
If
a Saas Contract exists solely for the Basic Functionalities, it may be
terminated with three months' notice to the end of the calendar quarter.
14.5.
Terms of Payment for the Use of the
Contract Software
14.5.1.
If
the Customer has to pay traplinked a remuneration for the use of the Contract
Software pursuant to Section 14.4, traplinked's claim to the remuneration arises
in advance at the beginning of the respective term and at the beginning of each
extended term and shall be payable on the day it arises.
14.5.2.
For
the payment of the remuneration according to Section 14.4, the Customer shall
issue a SEPA direct debit mandate or agree to the repeated debiting of his
credit card.
14.6.
Further consequences of default in
payment
14.6.1.
If
the Customer is in default of payment of a fee under the Saas Contract for more
than two consecutive months, we shall be entitled to withhold the use of the
Contract Software, in particular to temporarily block the Customer’s access to
the Contract Software, until all outstanding fee claims in respect of which
default has occurred have been settled.
14.6.2.
Fees
in connection with the use of the Contract Software that are not calculated on the
basis of usage must also be paid by the customer during the period of retention
or blocking pursuant to Section 14.6.1.
14.6.3.
Our
right to terminate for cause and to claim further damages for default remains
unaffected.
14.7.
Increase in remuneration
If you owe us remuneration for the
use of Premium Functionalities or the Interface Functionality, we may increase
the respective remuneration for the future by declaring this to you in text or
written form. The increase shall take effect six weeks after our declaration of
increase if a new term of the service to be remunerated begins at this time. If
this is not the case, the increase shall take effect after the expiry of the
six-week period with the start of the next new term of the service to be
remunerated. Such an increase in remuneration will amount to a maximum of 10%
of the respective remuneration valid until then. It is clarified that the
possibility of termination at the end of the respective term remains
unaffected.
14.8.
Obligations of the Customer
14.8.1.
The Customer shall ensure that it is entitled to use the data used in
the use of the Contract Software (e.g. location data, data of the users deployed
by the Customer; "Customer Data") as well as all rights
therefrom to the extent required for the use of the Contract Software and its
functions.
14.8.2.
The
Customer grants traplinked a non-exclusive right to use the Customer Data free
of charge for the duration of this contract. However, the right of use shall
only include such use of the Customer Data as is necessary for the performance
of traplinked's contractual obligations; Section 9 shall remain unaffected.
14.8.3.
If
a claim is made against traplinked in connection with the Customer Data and its
use due to an infringement of third party rights, the Customer shall indemnify
traplinked against such claim upon first request.
14.8.4.
The
Customer shall be responsible for the provision and maintenance of the Customer
Data, a sufficient backup of the Customer Data at another storage location as
well as for the maintenance, administration and, if necessary, personal
configuration of the access to the Contract Software granted to the Customer.
14.8.5.
If
traplinked provides a user manual or other instructions for the Contract
Software, the Customer shall independently acquire the explanations and
instructions contained therein and observe them when using the Contract
Software. Any qualification of the customer or the users of the Contract
Software deployed by the Customer required for the use of the Contract Software
shall be provided by the Customer at its own expense.
14.8.6.
If
the fulfillment of traplinked's contractual obligations requires the Customer's
cooperation, the Customer shall cooperate to the required extent and in a
reasonable manner free of charge, in particular the Customer shall be obliged
to cooperate to a reasonable extent in troubleshooting and the provision of
other support services by traplinked (including the documentation and
transmission of the information necessary for troubleshooting and support
services, which the Customer can provide with reasonable effort). Furthermore,
upon traplinked's request, the Customer shall name suitable and responsible
contact persons on its side.
14.8.7.
If
the Customer wishes to permanently or temporarily transfer the use of the
Contract Software to a third party (e.g. by passing on the Customer's log-in
data), he shall require the prior written consent of traplinked, unless the
third party is a service provider of the Customer, uses the Contract Software
exclusively in the interest of the Customer and is exclusively subject to the
instructions of the Customer with regard to the use of the Contract Software. A
right of termination of the Customer according to § 540 para. 1 sentence 2 German
Civil Code (BGB) is excluded. If traplinked agrees to a transfer of the use of
the Contract Software to a third party, the Customer's obligations towards
traplinked under this contract shall nevertheless remain in force.
14.8.8.
The
Customer shall be obligated to take appropriate measures to ensure that
unauthorized third parties cannot access the Contract Software, in particular
to protect the log-in data from being read by unauthorized third parties. If
the Customer has knowledge or suspicion that third parties can access the Contract
Software or have gained knowledge of the log-in data, the Customer shall inform
traplinked immediately.
14.8.9.
The
Customer shall ensure that its use of the Contract Software does not violate
any statutory or official regulations or any official or judicial decisions
known to it, unless the violation is the sole responsibility of traplinked.
14.8.10.
The
Customer shall ensure that the data used by it in connection with the use of
the Contract Software or transmitted to traplinked do not contain any viruses
or other malware and shall use state-of-the-art virus protection programs for
checking purposes.
14.8.11.
The
Customer shall ensure that it uses only the Native App for the use of the
Contract Software or only the internet browsers Google Chrome or Mozilla
Firefox in the respective current version published by the respective
manufacturer or provider for the use of the Web App. If the Customer uses
another internet browser, performance deficits of the Contract Software shall
not constitute a defect.
14.8.12.
The
Customer shall not be entitled to duplicate and modify the Contract Software,
unless this should be necessary for the contractual use of the Contract
Software or the modification is made to eliminate a defect the elimination of
which by traplinked has failed according to Section 14.12.9.
14.8.13.
Obtaining
traplinked's trade secrets by observing, examining, deconstructing or testing
the Contract Software which is in the Customer's lawful possession and which is
based on traplinked's trade secrets shall be prohibited, unless the
requirements of Section 69e German Copyright Act (UrhG) are met. This
obligation of the Customer to cease and desist shall continue to apply after
the termination of this contract. It shall end only and as soon as the
respective trade secret has been made publicly available by traplinked.
14.8.14.
Features
of the Contract Software which serve to identify the program, in particular
copyright notices, serial numbers or trademarks, may under no circumstances be
removed, changed or made unrecognizable by the Customer.
14.8.15.
The
Customer shall inform traplinked without undue delay if it processes personal
data using the Contract Software (Art. 4 No. 1, No. 2 GDPR), has become aware
that the Contract Software does not comply with the requirements of the GDPR for
a technical design under data protection law and the Contract Software cannot
be used by the Customer without processing the personal data and without
violating the GDPR.
14.8.16.
If
a claim is made against the Customer as a result of its use of the Contract
Software due to an infringement of third party intellectual property rights by
the Contract Software or due to non-compliance of the Contract Software with
requirements of the GDPR, the Customer shall inform traplinked thereof without
undue delay. In case of the possibility of a recourse claim of the Customer
against traplinked, the Customer shall not be entitled to acknowledge or
fulfill such claims without traplinked's prior written consent.
14.9.
Owed Availability
14.9.1.
The
Customer and traplinked agree that the Contract Software shall not be
classified as system-critical for the Customer's business operations.
14.9.2.
traplinked
shall ensure that the Contract Software is made available for use by the
Customer on each day of a calendar year from 0:00 a.m. to midnight minus the
interruptions within the meaning of Section 14.9.3 ("Provision Time").
14.9.3.
The
provision of the Contract Software may be interrupted
a. to carry out maintenance work or
changes to the Contract Software ("Scheduled
Downtime"), if a time window for the Scheduled Downtime has been
agreed with the Customer or if traplinked has informed the Customer at least 24
hours in advance about the Scheduled Downtime and its expected duration and the
Scheduled Downtime does not exceed eight hours, or
b. for other reasons which are not a
Special Event and not a case in accordance with Clause 14.12.10 ("Other
Downtime"), if the Other Downtime has been agreed upon with the
Customer or if the interruption of traplinked's services is of short duration
only, whereby such interruption is of short duration if it does not exceed one
hour in an individual case or or a total of three hours during a week from
Monday to Friday (excluding public holidays in Bavaria, Germany) between 8 a.m.
and 6 p.m. and a total of six hours during the remaining time.
14.9.4.
However,
a breach of traplinked's performance obligations with respect to the Contract
Software shall in any case and irrespective of the fulfillment of the Provision
Time only exist if the Contract Software is available for use for less than
98.5% of theProvision Time.
14.10.
Modifications or Enhancements of the
Software
14.10.1.
traplinked
shall only be obligated to modify the Contract Software to the extent necessary
for the maintenance of the Contract Software and for its further use by the
Customer.
14.10.2.
traplinked
may, as long as the Contract Software retains the functionality owed by
traplinked, modify or enhance the Contract Software at any time in order to
adapt the Contract Software to new or changed technical, legal or economic
requirements or to new or changed customer requirements or to introduce new or
changed functions. traplinked shall inform the Customer adequately in advance
about changes or enhancements of the Contract Software. traplinked may refrain
from providing such information if the change is intended to remedy a
malfunction, a defect or a security gap of the Contract Software in the short
term or if the change does not involve an unreasonable modification of the
Contract Software for the Customer. Modifications or enhancements shall not constitute
a default in performance.
14.11.
Termination for cause, blocking of
access, deletion of data due to breach of duty
14.11.1.
traplinked
is entitled to terminate the Saas Contract for good cause, in particular
a. if the Customer in respect of a
monthly remuneration is in default of payment of the remuneration for two
consecutive dates or of a not insignificant part of the remuneration or in
respect of a period extending over more than two dates is in default of payment
of the remuneration in an amount equal to the remuneration for two months,
b. if the Customer is in default of
payment of the remuneration for more than two months with respect to a
remuneration payable annually,
c. if the Customer has culpably
breached any other material obligation under this Agreement and as a result
traplinked can no longer reasonably be expected to adhere to the Agreement,
d. if insolvency proceedings have been
opened with regard to the assets of the customer or if the opening of such
proceedings has been rejected due to lack of assets, or
e. if traplinked has been prohibited
from offering or providing its contractually owed services as a result of a
change in the law or as a result of an official or judicial decision or the
offering or providing of the contractually owed services has otherwise become
impossible.
14.11.2.
If
the Customer culpably violates its obligations under Section 14.8, traplinked
may, after prior notification of the Customer in text form, block the
Customer's access to the use of the Contract Software, if the violation can be
demonstrably remedied.
14.11.3.
If
the Customer culpably violates its obligations under Section 14.8.9 and Section
14.8.10, traplinked may delete the Customer Data causing the violation.
14.12.
Warranty
14.12.1.
traplinked
warrants from the beginning of the contract and during the term of the contract
that it will maintain the Customer's possibility to use the Contract Software
in accordance with the service description from Section 14.2 to Section 14.4
and the scope of services contractually agreed therefrom (contractually agreed
quality [vertraglich vereinbarte Beschaffenheit]).
14.12.2.
Malfunctions
and failures of the Contract Software caused by use of the Contract Software
contrary to the terms of the contract or improper use of the Contract Software,
by other hardware or software of the customer which is directly or indirectly
connected to the Contract Software or by a modification of the Contract
Software made by the Customer or third parties without the consent of
traplinked shall not constitute a defect.
14.12.3.
If
the services of traplinked are not provided in accordance with the contract, §§
536 ff. German Civil Code (BGB) shall apply, unless otherwise stipulated in
this contract. The liability without culpability according to § 536a para. 1 German
Civil Code (BGB) for defects existing at the time of conclusion of the contract
shall be excluded.
14.12.4.
Should
the Customer discover a defect in the Contract Software, the Customer shall
immediately notify traplinked of the defect in text form. If a notice of defect
by the Customer is not sufficiently concrete and verifiable, we may require the
Customer to submit a concrete and verifiable description of the defect.
14.12.5.
Within
eight hours after notification of the defect, we shall assign the defect to a
defect class in accordance with § 315 German Civil Code (BGB). Defect class 1
comprises defects as a result of which the productive use of the Contract
Software by the Customer is not possible or only possible to a significantly
limited extent; the prerequisite is the failure of at least one of the
following functionalities: viewing the dashboard, location management, device
management of the Customer’s traplinked Mobile IoT Devices. Defect class 2
includes defects which do not constitute a defect of defect class 1, and due to
which the productive use of the Contract Software is limited, but the core
functionalities (i.e. at least the following functionalities: Sending of
notifications, viewing of floor plans, data export as pdf, csv or excel file,
infestation notifications, AI analysis of TOM images) - as far as these are
owed - are however available. Defect class 3 includes all other defects. If
there is a defect in the Contract Software, the following response times shall
apply, depending on the defect class, after the expiry of which, following
receipt of a concrete and verifiable defect notification from the Customer, we
shall commence with the remedy of the respective defect: in the case of defect
class 1, the response time shall be eight hours; in the case of defect class 2,
the response time shall be two working days (excluding Saturdays and public
holidays in Bavaria, Germany); in the case of defect class 3, the response time
shall be ten working days (excluding Saturdays and public holidays in Bavaria,
Germany).
14.12.6.
The
remedy of a defect in the Contract Software may also be effected by a temporary
solution or by the possibility of circumventing the defect by way of a
deviating use of the Contract Software, provided that such solution remedies the
defect or the Customer can thereby reasonably use the Contract Software.
14.12.7.
Notwithstanding
§ 275 para. 1 to 3 German Civil Code (BGB), traplinked may refuse to remedy a
defect if such remedy is only possible at disproportionate costs.
14.12.8.
The
Customer shall not be entitled to claim a reduction of the remuneration by
independently deducting the amount of the reduction from the current
remuneration. The Customer's claim under the law of enrichment to claim back
from traplinked a part of the remuneration overpaid due to a justified
reduction of the remuneration shall remain unaffected.
14.12.9.
Pursuant
to § 543 para. 2 no. 1 German Civil Code (BGB), the Customer shall be entitled
to terminate the contract for good cause if (a) the failure of traplinked to
perform the services in accordance with the contract constitutes a breach of
duty which is not merely insignificant and if (b) (i) the remedy of the defect
is impossible, (ii) traplinked refuses to remedy the defect, (iii) the remedy
of the defect is unreasonable for the Customer for other reasons or (iv) the
remedy of the defect by traplinked has failed. The rectification of defects
shall be deemed to have failed after the third unsuccessful attempt by
traplinked, but no earlier than two weeks after the end of the reaction period
applicable to the defect.
14.12.10.
If
the performance of traplinked is delayed or temporarily prevented by a Special
Event or technical problems of the internet beyond traplinked's control,
traplinked shall - to the extent known to traplinked - immediately inform the
Customer of the existence of such obstacle and its expected duration and
traplinked's obligation to perform shall lapse for the duration of the obstacle
to performance. Conversely, the Customer's obligation to pay the remuneration
shall lapse for the duration of the impediment to performance, unless this is
shorter than 24 hours. If the impediment to performance is not only temporary,
traplinked and the Customer shall each be entitled to terminate the contract
for good cause; an impediment to performance which is not only temporary shall
be deemed to exist if the impediment to performance lasts longer than two
weeks. In case of a termination due to such an impediment to performance,
claims for damages shall be excluded.
14.13.
Statute of Limitations
14.13.1.
Deviating
from the statutory provisions, claims of the customer against traplinked
arising from or in connection with the Saas Contract shall become
statute-barred two years after the end of the year in which the claim arose and
the customer became aware or should have become aware of the circumstances
giving rise to the claim and the identity of the debtor, at the latest,
however, five years after the claim arose, unless the claim is based on an
intentional or grossly negligent breach of duty, results from the assumption of
a guarantee for the quality (Beschaffenheit) of an item or from the fraudulent
concealment of a defect or is for compensation for damages from injury to life,
body or health.
14.13.2.
§ 548
German Civil Code (BGB) shall remain unaffected.
14.14.
Termination of the Saas Contract
14.14.1.
If
the Saas Contract ends, the Customer's right to use the Contract Software ends
at the same time.
14.14.2.
If
the Saas Contract ends, traplinked shall be entitled, but not obligated, to
delete the data uploaded or otherwise provided by the Customer within the scope
of the use of the Contract Software after the expiration of 12 months.
14.14.3.
If
the Customer continues to use the services of traplinked or parts of the
services (e.g. Premium Functionalities) of traplinked after expiration of the
contract term, this shall not lead to an extension of the contractual
relationship; § 545 German Civil Code (BGB) is excluded. The accrual of a claim
for compensation for use by traplinked against the Customer with regard to the
continued use remains unaffected, unless the Customer has effectively
terminated the contract or the relevant service via the Web App, traplinked
provides the Customer with the terminated services beyond the contract term
despite the termination and the Customer has notified us of this.
14.15.
Data protection
14.15.1.
When
using the Contract Software, the Customer shall only process personal data
(Art. 4 No. 1, No. 2 GDPR) to the extent it is entitled to do so. In
particular, the Customer shall ensure that it has the consent of the data
subject required for the processing, unless the processing is covered by a
statutory element of permission. If a third party asserts claims against
traplinked due to a processing of personal data by the Customer, the Customer
shall indemnify traplinked against such claims upon first request.
14.15.2.
The
parties shall conclude a processing agreement (Auftragsverarbeitungsvertrag) to
the extent that this should be necessary for the performance of this contract in
accordance with the requirements of the GDPR. If the Parties conclude a processing
agreement with regard to the performance of this contract, the provisions of
the processing agreement shall prevail over the provisions of this contract to
the extent the provisions contradict each other.
As from 31.01.2024