General terms and conditions of Telefónica Germany GmbH & Co. OHG for GEENY SecureSIM
Subject matter and scope of the general terms and conditions
These general terms and conditions regulate the contractual relationship for the product GEENY SecureSIM, hereinafter “M2M/IoT service(s)”, between Telefónica Germany GmbH & Co. OHG, Georg-Brauchle-Ring 50, 80992 Munich, HRA 70343 of the local court of Munich (hereinafter “Telefónica Germany”) and the customer regarding the use of the M2M/IoT services described. They also apply to an individual contract or a framework agreement if reference is made therein to these general terms and conditions.
General terms and conditions of business of the customer do not apply, even if Telefónica Germany does not expressly object to those general terms and conditions of business of the customer. M2M/IoT services are intended exclusively for entrepreneurs as defined by section 14 of the Bürgerliches Gesetzbuch (BGB – German Civil Code).
Data communication is enabled by Telefónica Germany by providing mobile phone cards (“SIM cards”) with German IMSI, depending on the product regulations in the individual contract or framework agreement.
M2M/IoT services are agreed between the parties through individual contracts by reference where appropriate to a separate (framework) agreement. These general terms and conditions, the relevant individual contract and, where appropriate, a separate framework agreement, as well as other agreements entered into between the parties to the contract, are jointly referred to hereinafter as the “contract” for the sake of simplicity.
1. M2M/IoT services comprise the following content:
1.1. If separately defined in the contract: provision of one or more M2M platforms to enable the management of individual orders/SIM cards and application/customer data by the customer;
1.2. provision of SIM cards with a German IMSI and corresponding logistics for the delivery to the customer;
1.3. data communication and connections (via the mobile network of Telefónica Germany and VPNs) between M2M/IoT devices and a destination with an address (customer VPN, server or M2M/IoT platform) via especially secure transmission channels.
2. Formation of individual contracts and contract term
2.1. Individual contracts are formed as a result of the customer placing an order (offer) in the online shop and this being accepted by Telefónica Germany by sending an order confirmation to the customer by e-mail. Telefónica Germany is not required to accept an order from the customer.
2.2. The term of individual contracts is determined by the relevant individual contract, the term of a framework agreement is determined by the terms and conditions described therein. The contract can be terminated in writing by the customer without notice and by Telefónica Germany with notice of one month.
2.3. If the contract is terminated by the customer, the customer will not be entitled to the pro rata reimbursement of unused included or additionally purchased services.
2.4. Individual contracts have fixed terms that are dependent on the respective service specifications of the individual products. After the end of the fixed term, the individual contracts end automatically and without notice.
3. Information on data protection
Information, particularly regarding credit or identity checks, the type, scope, place and purposes of the collection and use of the customer’s personal data, basic processing facts as well as the customer’s selection and customisation options and other rights of the data subject, can be found in the data protection information sheet of Telefónica Germany at www.o2.de/business/recht/datenschutz.
4. Invoicing and commercial terms and conditions
4.1. All payments must be made by direct debit or by transfer to the account of Telefónica Germany. The customer will be invoiced as at the end of the month in which the respective order was placed.
4.2. All prices are net prices and exclusive of statutory VAT.
4.3. If an (end) customer of the customer does not pay the customer, the customer is not exempted from its payment obligations to Telefónica Germany for this reason.
4.4. The payment term is 30 days from receipt of the relevant invoice by the customer.
4.5. The customer can raise valid objections to individual claims made in the bill. The customer can object to pay-as-you-go fees that have been billed within a period of eight (8) weeks from receipt of the bill. The failure to submit objections on time is deemed approval of the fees. This does not affect statutory rights of the customer where objections are submitted after the deadline has expired. Note: if:
a) traffic data are not stored; or
b) stored traffic data have been deleted on the request of the customer, Telefónica Germany has no obligation to furnish proof of the connections provided or an obligation to provide information on the individual connections.
4.6. The right of Telefónica Germany to refuse to perform (block) the contractual services in full or in part is governed by the statutory regulations.
5.1. Each party is responsible for complying with the tax, social security and similar regulations applicable in accordance with the contract to their activities. If the customer is required by law to retain a part of the invoice amount for tax reasons (withholding tax), the customer is entitled to retain the relevant part of the invoice amount prescribed by law and will transfer this amount to the tax authorities on the data stipulated by law. This does not apply, however, if Telefónica Germany submits an official tax exemption certificate from the relevant tax authority to the customer. If the tax exemption certificate does not cover the entire invoice amount, the customer can retain the amount to which the exemption does not apply. Following a corresponding request, the customer will provide reasonable assistance to Telefónica Germany when it applies for a tax exemption certificate of this kind.
5.2. The withholding tax only applies if the customer is resident outside Germany.
6. Scope of the services provided by Telefónica Germany
6.1. If the customer is provided with software applications, Telefónica Germany grants the customer a non-exclusive licence, limited in terms of place and time to the place of performance and to the term of the contract, to use the M2M/IoT/IoT service (especially the M2M/IoT platform(s)) and, if transfer is permitted, to issue sub-licences to (end) customers of the customer for the purposes of the contract. The customer confirms that the M2M/IoT service can only be used by the customer if they install a VPN endpoint in their network environment that allows secure access to the Telefónica Germany mobile network. This VPN endpoint must be maintained for as long as the customer uses the M2M/IoT service under the contract.
A VPN endpoint is not one of the services provided by Telefónica Germany under this contract.
6.2. Telefónica Germany is not responsible for the operation, inspection, maintenance, transportation, dispatch, transfer, loading or unloading or the installation of equipment or accessories that is or are acquired from or provided by a party other than Telefónica Germany. Telefónica Germany is not required to change, modify or supplement its components, M2M/IoT services or systems in order to adapt them to the M2M/IoT equipment provided or used by the customer.
6.3. In the event of malfunctions, irregularities or technical faults in the M2M/IoT service, Telefónica Germany is only responsible for its restoration or repair in accordance with the contractual regulations, especially only in due consideration of the restrictions that have been agreed. Any responsibility of Telefónica Germany for malfunctions, irregularities or technical faults in the M2M/IoT service is excluded from the outset if these can be attributed to manipulation or use of the M2M/IoT service by the customer or its (end) customers that is in breach of the contract or that is not authorised. If restoration times are described in the contract SLAs, restoration within the framework of the SLAs means that the M2M/IoT service is deemed to have been performed in accordance with the contract from the beginning.
6.4. Telefónica Germany is not responsible for delays in the provision of the SIM cards to the customer if the delay results from the process to obtain the MSISDN by the (public) institution that is responsible for assigning MSISDNs, unless the delay can be attributed to a fault on the part of Telefónica Germany.
6.5. Certain elements of the M2M/IoT service can be dependent on whether the customer or another third party has appropriate infrastructure or uses suitable M2M/IoT equipment. If the above-mentioned appropriate infrastructure is not available or the customer does not use suitable M2M/IoT equipment Telefónica Germany assumes no responsibility for consequences resulting from that.
6.6. Telefónica Germany is exempted from performing the service in accordance with the contract if a domestic or foreign public institution (e.g. an authority, a court, etc.) decrees, orders or threatens that the M2M/IoT service be stopped or partially suspended in one or more countries or a corresponding prohibition results from a change in the legal situation.
6.7. Telefónica Germany is exempted from performing the service in accordance with the contract if a domestic or foreign public institution (e.g. an authority, a court, etc.) rules that the coverage of assigned numbers for the performance of the M2M/IoT services be restricted or changed in one or more countries.
6.8. Telefónica Germany is exempted from performing the service in accordance with the contract if a domestic or foreign public institution (e.g. an authority, a court, etc.) rules that the roaming service be blocked or prohibited for SIM cards or “permanent roaming users” in one or more countries or if a corresponding prohibition results from a change in the legal situation.
6.9. The customer confirms that the M2M/IoT service is only intended to be used in the territory of the Federal Republic of Germany. If the customer uses the M2M/IoT services (also or in particular on a permanent basis) in other countries, it must clarify the general legal and in particular regulatory conditions of any use in the relevant country and, where appropriate, obtain the necessary permissions for this on its own initiative. The customer thus bears the responsibility for ensuring that the extraterritorial use of the M2M/IoT service is permitted in accordance with the applicable foreign legislation. Telefónica Germany is not required to obtain or acquire any licences, permits or similar that may be required in countries other than the Federal Republic of Germany.
6.10. Telefónica Germany will inform the customer accordingly as soon as it gains knowledge of circumstances that will lead to a restriction in the performance of the services.
6.11. Telefónica Germany is only responsible for the access to the mobile network of Telefónica Germany by activating the SIM cards that have been assigned and for the transmission of the data via the mobile network of Telefónica Germany, if the customer has duly and properly fulfilled its duties to cooperate specified in section 7.
6.12. If stipulated in the contract, Telefónica Germany assigns a password to the customer for accessing one or more M2M/IoT platforms for managing individual contracts/SIM cards and application data. Application data will be transferred to the M2M/IoT platform(s). Telefónica Germany is only responsible for the provision and operation of and access to the platforms.
6.13. Telefónica Germany is not responsible for data or information that are disclosed automatically by M2M/IoT data transmission or manually by the customer to M2M/IoT platforms or for data that the customer inputs directly there or for data that are transferred by platforms. Telefónica Germany assumes no liability for the content transmitted or provided being correct and complete.
7. Responsibility of the customer and their duties to cooperate
7.1. The customer must ensure that the M2M/IoT equipment that is used is situated at locations where the mobile network of Telefónica Germany provides adequate network coverage. To ensure this, the customer must check the network coverage at the relevant location of the radio module using test cards to be sourced separately from Telefónica Germany. The customer must furthermore ensure that the M2M/IoT equipment that it uses is suitable for the use of the SIM cards that are assigned, is compatible with the mobile network of Telefónica Germany and can be used for the purpose intended by the customer. If the above duties of the customer to cooperate are not fulfilled, Telefónica Germany is exempted from its corresponding obligations arising from the contract without the customer being entitled to any claims – of whatever kind and on whatever legal grounds – resulting from this.
7.2. Immediately after receiving a SIM card, the customer is required to change the PIN (personal identification number) of the relevant card that is notified to it by Telefónica Germany to a PIN that it chooses itself. In the event that SIM cards with a deactivated PIN request (i.e. without a PIN) are issued, the customer is liable for all losses incurred as a result of the misuse of these SIM cards by the customer or by third parties.
7.3. The customer is permitted to pass on the M2M/IoT services to its (end) customers only if this is agreed separately in the contract. If permission is given, the customer is responsible for the resale of the M2M/IoT services to its (end) customers and for all obligations that result from the agreement between the customer and its (end) customers. The customer must ensure that it can also enforce the duties arising from the contract against its (end) customers. In addition to the regulations concerning the (end) customers in the contract, the following applies in particular:
a) The customer is responsible for the interaction with its (end) customers, especially for the invoicing and the settlement process in respect of its (end) customers.
b) The customer is responsible for ensuring that the form for agreeing M2M/IoT services, in which the precise details and requirements of (end) customers of the customer are contained, is filled out correctly.
c) The customer is responsible for:
- responding appropriately and immediately to problem reports from (end) customers;
- fixing such problems for an (end) customer;
- providing the (end) customers with well-founded information on the status in relation to the repair or restoration work without undue delay;
- performing initial diagnostics on the incident reports from the (end) customers for the purpose of notifying the irregularity to Telefónica Germany if the irregularity related to the access of the (end) customers to the M2M/IoT functions or if the irregularity related to elements of the M2M/IoT service;
7.4. Upon entering into the contract, the customer irrevocably issues its waiver of any change in the regulated roaming tariff during the entire term.
7.5. Compatibility: an M2M/IoT device that is provided and used by the customer must be compatible with the M2M/IoT service. Only SIM cards that are provided with the M2M/IoT service can be used in an M2M/IoT device to access the M2M/IoT service. The VPN equipment of the customer or of their (end) customer must fulfil the requirements for the connection with the mobile VPN of Telefónica Germany. SIM cards that are provided by Telefónica Germany for the M2M/IoT service are only compatible with the M2M/IoT service described here.
7.6. The customer is responsible for ensuring that the M2M/IoT service is used only to the extent that is stipulated in accordance with the provisions of the contract. The customer is responsible for any inappropriate use of the M2M/IoT service by the customer and its (end) customers.
7.7. The customer is responsible for ensuring that all statutory requirements in relation to the use of the M2M/IoT service are fulfilled on its part, especially in relation to the requirement concerning the M2M/IoT devices or other equipment, as well as for providing Telefónica Germany with all information that is reasonably required by Telefónica Germany in connection with the contract.
7.8. The customer is responsible for ensuring that all applicable laws and regulations as well as requirements imposed by regulatory authorities to which the use and the distribution of the M2M/IoT service are subject are fulfilled by the customer and its (end) customers; it is in particular responsible for ensuring that any necessary licence, confirmation or approval in the relevant jurisdictions in which the M2M/IoT service is used is issued or obtained. The customer must not issue any assurances, warranties or obligations to third parties that distort or conflict with the contract. If agreed separately in the contract, the customer is permitted to enter into contracts for the use of the M2M/IoT service with its (end) customers if it ensures that Telefónica Germany can unconditionally fulfil any duties it has in respect of authorities, courts or other competent agencies (duties to provide information, monitoring duties or comparable duties). In particular, at any time the customer must be able to name the persons in the M2M/IoT service chain for which the M2M/IoT communication is performed and the (legal and natural) persons that use the SIM cards.
7.9. The customer alone bears the responsibility for the content transmitted by the customer on M2M/IoT platforms. The customer will defend, protect and indemnify Telefónica Germany against all rights, measures, claims, losses and liability obligations (including legal fees) that are based on or connected with any use in breach of the contract or illegal or criminal use by the customer or its (end) customers or any illegal content of the data stored, downloaded, uploaded or otherwise transmitted by the customer.
7.10. Any ID assignment of individual SIM cards to specific persons must be carried out using the customer’s own systems. If the customer also carries out an ID assignment of individual SIM cards to specific persons without authorisation on an M2M/IoT platform, the customer bears responsibility for this. Telefónica Germany points outs that the notification/consent of the data subjects and the approval of a works council may be required for this. This is the customer’s responsibility.
7.11. Telefónica Germany also assumes no liability in this respect for the content provided on or by the M2M/IoT platform(s) being correct; any related liability of Telefónica Germany is accordingly excluded.
7.12. The customer confirms that when the M2M/IoT service is used data are collected and stored on the platform of Telefónica IoT & Big Data Tech, S.A.U. and, if stipulated in the contract, (also) on another platform (possibly on a platform of a third party service provider). If data are transmitted here, the customer consents to this data transmission.
7.13. If it receives passwords for SIM cards, the customer undertakes to keep these confidential and not to disclose them to third parties. (End) customers of the customer are not regarded as third parties in this respect.
7.14. If Telefónica Germany also provides a platform for managing application data, Telefónica Germany will check the content stored there and possibly remove them from the M2M/IoT platform if specific circumstances require this and on condition that there is a statutory obligation to do so.
7.15. The customer is liable to Telefónica Germany for all actions of its (end) customers and the relevant users.
7.16. As soon as the customer suspects that the M2M/IoT services is being used fraudulently or ascertains that an SIM card or an M2M/IoT device that contains a SIM card has been stolen or lost or that a person is using the SIM card or the M2M/IoT service in a way that is in breach of the contract or illegal, it must inform Telefónica Germany immediately after discovering the fraud, loss, or theft or misuse. Furthermore, the customer must immediately deactivate the SIM card(s) in question and the M2M/IoT service. The customer is responsible for all costs and procedures that result from the misuse or fraudulent use of the M2M/IoT service by the customer, its (end) customers or the users. The copying or cloning of physical access equipment or electronic identifiers in order to enable more sessions is prohibited. Telefónica Germany can suspend or modify the M2M/IoT service immediately and without prior notice if it determines that the M2M/IoT service is being used with intent to defraud. The customer must cooperate with Telefónica Germany in investigating and rectifying the causes.
7.17. The customer is responsible for all fixtures, installations and assemblies that it performs to integrate the SIM cards in M2M/IoT devices, other hardware or modules, unless otherwise agreed between the parties. This also applies accordingly in the event that defective SIM cards are replaced.
8. Assignment of numbers (MSISDN); ordering and delivery of SIM cards
8.1. Subject to the availability in the part of the competent authorities and of the regulatory authorities for the specific assignment of numbers, Telefónica Germany will provide the customer with SIM cards and corresponding numbers and reserve as many numbers for the customer that are required in order to cover the demand of the customer based on its forecast. The customer will update its forecast regularly.
8.2. The SIM cards are delivered in accordance with the terms and conditions of the contract. The customer does not acquire ownership of SIM cards that are provided.
8.3. The customer bears the risk of loss from the time it receives the SIM cards.
9. Terms and conditions of use
9.1. The customer undertakes to only use the SIM cards to set up its own M2M/IoT communication (section 9.6) and also to impose this obligation on its own (end) customers. In particular it is not permitted to relay connections, of whatever kind or origin, established by third parties by means of a SIM card provided by Telefónica Germany through switching or transmissions systems (e.g. SIM boxing). The customer must not breach any regulations under criminal law or regulations for the protection of minors or infringe any rights of this parties, retrieve, store or make available to third parties any illegal or indecent content, refer to offers involving content of this kind or provide connections to pages of this kind (e.g. hyperlinks). Please note that the unsolicited transmission of information and services, e.g. unwanted and unsolicited advertising by e-mail, text message, fax or phone, is prohibited by law under certain circumstances. The customer must not use the M2M/IoT service to establish permanent voice or data connections in the sense of a dedicated line or to establish connections where the customer or a third party receives or intends to receive payments or other assets as consideration on account of the connection or the duration of the connection. When passing on the SIM cards handed over to the customer by Telefónica Germany to a third party, the customer is liable for the conduct of/use by the third party.
9.2. If there is a reasonable suspicion that the customer has breached the regulations in section 9.1, Telefónica Germany is entitled to block all SIM cards assigned to the customer after giving advance notice.
9.3. The customer must not deliberately or negligently disrupt the facilities, the networks, the service or the infrastructure of Telefónica Germany in such a way that the quality of the service performed by Telefónica Germany is impaired. The customer must immediately cease all disruptive actions following a request to this effect.
9.4. If a party receives a court ruling concerning electronic surveillance, it must comply with the court ruling and immediately request from the other party the technical support that is required for the electronic surveillance and, if this is possible, provide all relevant information that the other party requests concerning the surveillance, including the court order, if the party that has received the court ruling is not prohibited from doing so in accordance with the conditions of the court ruling.
9.5. The customer confirms that the infrastructure, equipment and modules on and with which the customer will use the M2M/IoT service on the mobile network of Telefónica Germany are consistent with the normal certification standards and certification procedures of Telefónica Germany.
9.6. The permitted type of use of the SIM cards provided by Telefónica Germany is restricted to M2M/IoT communication within the meaning of the current order issued by the Federal Network Agency. M2M/IoT communication in this connection means the automated exchange of information between different technical equipment or between technical equipment and a central data processing system. If the customer or (end) customers of the customer also use the M2M/IoT service for voice and text message services, this is done on the customer’s own responsibility, whereby the use of voice communication or text messages independently of M2M/IoT communication as defined above is not permitted. Sending a disproportionately high number of text messages (bulk text messages) is also not permitted.
9.7. The customer is responsible for ensuring that the duties and prohibitions described in this section 9 are also complied with by its (end) customers.
10. Warranty/scope of service
10.1 The customer acknowledges that (i) the M2M/IoT service is only available within the operational range of the mobile network of Telefónica Germany and (ii) the M2M/IoT service can be temporarily suspended, limited or otherwise restricted on account of transmission constraints that arise as a result of concentrated usage or capacity limitations or on account of changes, modifications, updates, relocations, repairs, maintenance of the systems or similar activities that are required for the appropriate or enhanced operation of the systems. In cases of this kind, Telefónica Germany does not assume any liability in respect of the customer in relation to (i) claims for compensation of damages on account of a gap in supply or the lack of availability of the M2M/IoT service or (ii) a suspension, limitation or other restriction of the M2M/IoT service or (iii) force majeure.
10.2 Telefónica Germany also assumes no responsibility for disruptions that result from the radio, atmospheric or geographical conditions at the relevant location of the data transmission equipment or an M2M/IoT device (radio shadows, etc.), or for interference factors that are subsequently produced there (construction works, etc.). Telefónica Germany is not regarded as a user of third-party content that can be accessed through the M2M/IoT service. Telefónica Germany is not responsible in respect of the customer for content, including information, opinions, advice and statements, or for services that are performed by third parties and that can be accessed through the M2M/IoT service or for losses resulting from these. Telefónica Germany provides no guarantee that the information that is received through the M2M/IoT service is correct, complete or useful.
10.3 Telefónica Germany assumes no responsibility for the accuracy and completeness of the data or information that are sent to or contained in an M2M/IoT platform or for data that are forwarded from an M2M/IoT platform.
10.4 In the event that defective SIM cards that have been integrated in M2M/IoT devices, other hardware or modules are replaced, Telefónica Germany assumes no costs of any kind for uninstalling defective SIM cards or for installing new SIM cards. Claims of the customer for compensation of damages with regard to the downtime of devices, other hardware or modules in or on which the SIM cards uninstalled for replacement have been installed that is caused as the result of a warranty claim are excluded.
10.5 Telefónica Germany can replace a SIM card that has been assigned with a replacement card for good cause, e.g. on account of technical changes that are necessary. The customer is required to cooperate in the replacement to a reasonable extent.
11. Liability of Telefónica Germany
11.1 If Telefónica Germany, as a provider of publicly available telecommunications services, is required to compensate a customer for a material loss or to pay compensation on the basis of the Telekommunikationsgesetz (TKG – German Telecommunications Act), the limits on its liability are governed by Part Three of the German Telecommunications Act.
11.2 Outside the scope of section 11(1), regardless of the legal basis, Telefónica Germany is:
a) fully liable in the event it causes any damage through wilful intent or gross negligence;
b) fully liable in the event of a wilful or negligent injury to life, limb or health;
c) fully liable if Telefónica Germany is subject to unlimited liability pursuant to mandatory statutory regulations, especially the Produkthaftungsgesetz (German Product Liability Act);
d) fully liable if Telefónica Germany has fraudulently concealed a defect or has provided a warranty;
e) liable for other damage caused by negligence if this damage is based on the breach of a material contractual duty of Telefónica Germany; the amount of this damage is limited to the damage typical of this kind of contract that can be foreseen when the contract is entered into. Material contractual duties are duties where their fulfilment is a requirement enabling the contract to be properly performed in the first place, where their breach can prevent the purpose of the contract from being achieved and where the customer can routinely be confident that they will be complied with. Foreseeable damage typical for this type of contract means damage typically expected for a contract of this type given the respective breach of duty by Telefónica Germany. The statute of limitations for all liability claims against Telefónica Germany in accordance with this section 11.2 (e) is one year.
11.3 In the event of the loss of data, Telefónica Germany is liable only for slight negligence under the conditions and to the extent stipulated in this section 5 if the customer has sufficiently backed up their data so that they can be restored at acceptable cost.
11.4 The liability of Telefónica Germany is excluded unless otherwise regulated above.
11.5 If the liability of Telefónica Germany is excluded or limited, this also applies to its management, employees and vicarious agents.
11.6 Strict liability pursuant to section 536a(1) BGB is excluded with regard to any technical devices that may be provided by Telefónica Germany.
11.7 The liability of Telefónica Germany is excluded for losses for which Telefónica Germany is not responsible, especially losses caused by:
(a) unauthorised intervention by the customer or its business partners in the technical infrastructure of Telefónica Germany;
(b) the technical equipment or the network infrastructure of the customer or of its business partners;
c) incorrect, improper or negligent installation, operation or handling by the customer, its business partners or third parties of the devices or systems required to use the service or caused by the failure to observe or comply with the information and provisions stipulated in the description of service, operating instructions or other product information.
11.8 If, on the basis of a provision of Part Three of the German Telecommunications Act, Telefónica Germany is required to compensate the customer for damages or to pay compensation in accordance with the general provisions, this compensation will count towards compensation paid by Telefónica Germany to the customer on the basis of a breach of the German Telecommunications Act, an ordinance passed on the basis of the German Telecommunications Act, an obligation imposed in an allocation on the basis of the German Telecommunications Act or an order by the Federal Network Agency; compensation paid by Telefónica Germany to the customer on the basis of a breach of the German Telecommunications Act, an ordinance passed on the basis of the German Telecommunications Act, an obligation imposed in an allocation on the basis of the German Telecommunications Act or an order by the Federal Network Agency will count towards compensation in accordance with the general provisions.
12.1. For the purposes of the contract, the information that is issued, sent, received or exchanged in connection with the contract is considered to be confidential. The parties undertake to keep this information confidential and not to be disclose it to third parties.
12.2. Section 12.1 does not apply to information where its disclosure has been expressly permitted in writing by the disclosing party. Each party can disclose relevant aspects concerning the confidential information of the other party to its employees as well as the employees of its subcontractors and affiliated companies if the stated disclosure is necessary in order for them to fulfil their duties under the terms of the contract, provided the disclosing party institutes all reasonable measures in respect of the recipient that it would institute in order to protect its own confidential information and in particular imposes a non-disclosure requirement on the recipient for its part.
12.3. The duties pursuant to section 12.1 do not restrict disclosure by one of the parties:
a) if the disclosure is made in accordance with a valid law or a ruling of a court or of a government authority (if the disclosing party ensures that it informs the other party in a way that is appropriate in view of the circumstances);
b) if the disclosure involves information that the other party has developed autonomously without referring to the confidential information of the disclosing party;
c) if the disclosure involves information that has become publicly known in a way other than through unauthorised disclosure in breach of the non-disclosure obligations provided in the contract; or
d) if it involves information that has been disclosed by the owner of the information to a third party without any non-disclosure requirement or that a party has gained knowledge of or that it possesses without being subject to a non-disclosure obligation.
12.4. The parties may only use the confidential information in order to fulfil their respective duties within the framework of the contract; the parties are accordingly liable for all losses that may be incurred as a consequence of a breach of section 12.
12.5. If a party becomes aware that confidential information has been lost or disclosed contrary to the provisions of the contract by internal staff or subcontractors or (end) customers, this party will inform the other party as soon as it becomes aware of this.
12.6. The non-disclosure requirements remain in force also after the contract has expired and are effective for a period of five (5) years after the contract has ended. After the contract has ended, the parties are required to hand back all confidential information that has been disclosed by the other party or to delete and destroy it (unless a party is required to retain the information in order to fulfil relevant statutory obligations) and not to disclose this confidential information itself or through third parties.
13. Data protection
13.1. Where the customer would like to use a platform that has been provided in order to manage personal data that are not subject to the data protection requirements of the special statutory telecommunication laws, Telefónica Germany draws the attention of the customer expressly to its responsibilities under data protection law.
13.2. The customer acknowledges that all data recorded by Telefónica Germany will be sent to Telefónica IoT & Big Data Tech, S.A.U. and also, if stipulated separately in the contract, to another platform operator. The customer furthermore acknowledges that the use of the M2M/IoT service, including the recording of usage data, takes place within the platform of Telefónica IoT & Big Data Tech, S.A.U. or of the other platforms. The recording and storage of the data in this respect is thus (also) subject to Spanish law where appropriate.
14. Issuing sub-contracts and assignment
14.1. With regard to the entire M2M/IoT service or part thereof, Telefónica Germany can unconditionally issue sub-contracts to third parties (“subcontractors”) or work together with them without the prior consent or permission of the customer.
14.2. Unless stipulated otherwise in the contract, the customer must not assign or transfer the rights arising from the contract either individually or in their entirety to third parties without the prior written consent of Telefónica Germany, where consent cannot be withheld by Telefónica Germany without cause.
15. No transfer of rights
15.1. All rights and information of Telefónica Germany remain its property and no provision of the contract – with the exception of 6.1 of these general terms and conditions – may be understood explicitly or implicitly as a transfer of rights or as a granting of a licence to the customer.
15.2. All rights and information of third-party providers or subcontractors of Telefónica Germany, especially of Telefónica IoT & Big Data Tech, S.A.U. and also of any other platform operator specified in the contract remain their property and no provision of the contract – with the exception of 6.1 of these general terms and conditions – may be understood explicitly or implicitly as a transfer of rights or as a granting of a licence to the customer.
15.3. The customer undertakes not to infringe any copyrights or other rights of third parties.
15.4. In particular the customer is prohibited from using the objects, the software application, platforms, M2M/IoT services and rights that have been provided beyond the scope stipulated by the contract for its own or third-party purposes or from licensing them or from using them to develop, apply for, maintain, license, assert or defend intellectual property rights or applications for intellectual property rights. The customer is furthermore prohibited from developing or applying for or filling applications for patents or utility models, trademarks, registered designs, domains, business names, such as company names or company slogans, or other applications for intellectual property rights using the objects, software applications, platforms, M2M/IoT services and rights that have been provided.
16. Exclusion of mobile number portability
As the SIM cards are (also) managed through a platform of Telefónica IoT & Big Data Tech, S.A.U. in Spain, the customer cannot be offered the option of transferring the mobile phone number (porting) to another service provider when the customer changes the service provider.
17. Price adjustments
17.1. Telefónica Germany is entitled to adjust the prices to be paid on the basis of the contract at its discretion in accordance with section 315 BGB in line with the trends in the total costs that determine the calculation of the price.
17.2. The total costs consist in particular of costs for providing, using and operating the network (e.g. for technology, network access and network interconnections, technical service), costs for customer administration (e.g. for customer hotlines and service, invoicing and IT systems), service and personnel expenses and other overheads (e.g. for administration, energy, rent, IT systems). The total costs also include generally binding charges imposed by governmental regulations on the basis of the services owed under this contract (i.e. not fines, etc.), if these directly affect the costs of the contractual services.
17.3. A price increase comes into consideration and a price reduction must be implemented if and insofar as the total costs that are key to calculating the price increase or decrease after the contract has been entered into. Increases in a cost type, e.g. the costs for using the network, may only be taken into account in proportion to the total costs that are key to calculating the price and only insofar as no offsetting is carried out as a result of any reduction in costs in other areas, e.g. in customer service. If costs decrease, the prices must be reduced accordingly if these cost decreases are not offset in full or in part by increases in other areas. When exercising its discretion, Telefónica Germany will select the relevant times of any price change in such a way that cost reductions are not billed based on criteria that are more unfavourable for the customer than cost increases, i.e. cost reductions come into effect at least to the same extent as cost increases.
17.4. The customer will be notified of price increases in accordance with section 17(1) to (3) on a durable medium at least six (6) weeks and not more than two (2) months before the price increase is due to take effect. This notification must inform the customer clearly and comprehensibly of the timing and content of the price increase. If the customer has a right of termination in accordance with section 17(5), the customer will also be informed of this clearly and comprehensibly in the notification.
17.5. Within three (3) months of receiving the notification in accordance with section 17(4), the customer can terminate the contract without cost or notice, unless the notified price increase is directly required by EU or domestic law. At the earliest, the contract can be ended by way of termination from the date on which the price increase is due to take effect. This does not affect the right to ordinary termination of the contract.
17.6. The customer will be notified of price reductions in accordance with section 17(1) to (3) on a durable medium at least six (6) weeks and not more than two (2) months before the price increase is due to take effect. This notification must inform the customer clearly and comprehensibly of the timing and content of the price reduction. Price reductions do not grant the customer a right of termination. This does not affect the right to ordinary termination of the contract.
17.7. This is furthermore without prejudice to section 315 BGB.
18. Amendments to Terms & Conditions and description of service
18.1. Telefónica Germany is authorised to amend the Terms & Conditions if this is necessary for a valid reason and the original relationship between performance and counterperformance is preserved by the changes such that the change is reasonable for the customer. A valid reason exists if and to the extent that developments after the formation of the contract that Telefónica Germany was unable to predict, that Telefónica Germany did not induce and that were beyond its control disrupted the original balance of the contractual relationship or not insignificant difficulties arise in the execution of the contract. A valid reason also exists if and to the extent that this is necessary to resolve disruptions to the original balance of the contractual relationship or not insignificant difficulties arise in the execution of the contract due to gaps that arose after the formation of the contract. In particular, a gap can arise if the case law on the effectiveness of provisions of these Terms & Conditions changes or a legal amendment invalidates one or more provisions of these Terms & Conditions.
18.2. Telefónica Germany is authorised to amend the agreed performance if this is necessary for a valid reason and the original relationship between performance and counterperformance is preserved such that the change is reasonable for the customer. In particular, a valid reason exists if the change is necessary to adapt to technical developments (e.g. new technical standards) or on account of statutory or official guidelines. This also applies if the change is necessary to preserve the interoperability of networks.
18.3. The customer will be notified of changes in accordance with section 18(1) to (2) on a durable medium at least six (6) weeks and not more than two (2) months before the changes are due to take effect. This notification must inform the customer clearly and comprehensibly of the timing and content of the change. If the customer has a right of termination in accordance with section 18(4), the customer will also be informed of this clearly and comprehensibly in the notification.
18.4. Within three (3) months of receiving the notification in accordance with section 18(3), the customer can terminate the contract without cost or notice, unless the notified change is exclusively for the benefit of the customer, is of a purely administrative nature, has no negative impact on end users or is directly required by EU or domestic law. At the earliest, the contract can be ended by way of termination from the date on which the change is due to take effect. This does not affect the right to ordinary termination of the contract.
19. Selection and change of technical equipment
19.1. Telefónica Germany is free to choose the technical equipment that it will use to perform the agreed services, unless equipment has been agreed by contract as the sole equipment. This technical equipment includes, for example, infrastructure, platforms, transmission technologies and protocols as well as user interfaces.
19.2. Telefónica Germany is entitled to make changes to this technical equipment at any time, provided the contractual service obligations of Telefónica Germany towards the customer are not changed. Section 18 applies if the change pursuant to sentence 1 leads to a change in the contractual service obligations of Telefónica Germany towards the customer.
20. Dispute resolution, applicable law and venue
20.1. In the event of disputes, differences of opinion or divergences that arise in relation to the interpretation, execution or performance of or compliance with the contract, the two parties must first engage in a dialogue in order to resolve the dispute in accordance with the principles of good faith.
20.2. The contract is governed by German law; the UN Convention on Contracts for the International Sale of Goods does not apply. The venue for all claims arising from the contract is Munich.
21. Force majeure
21.1. Telefónica Germany is not liable for any breach of its contractual duties if the fulfilment of its duties is delayed or becomes impossible as a consequence of force majeure; the customer must be informed of this circumstance as quickly as is reasonably possible.
21.2. For the purposes of this contract, “force majeure” means an incident outside the reasonable control of Telefónica Germany that prevents Telefónica Germany from fulfilling its duties arising from the contract, where this can include one or more of the following events: strikes, insurrection, riots, military actions, terrorism, earthquakes, storms, floods, impossibility of procuring necessary resources, fuel or means of transport, declaration of a state of emergency by a government authority.
21.3. The delivery dates or contractual duties stipulated in the contract are extended for as long as the force majeure event continues. If the cause of the force majeure event continues for longer than three (3) months, the contract ends, unless otherwise mutually agreed by the parties.
21.4. The customer is not entitled to compensation for the consequences of circumstances involving force majeure.
22. Statutory Legal Information
The customer could receive public warnings of impending or spreading emergencies and disasters on its M2M/IoT device via the central federal warning system. Information on technical requirements for reception as well as on necessary settings in the operating system of a M2M/IoT device can be found at https://www.telefonica.de/cell-broadcast. Such public warnings could also be sent for testing and exercise purposes.
23. Final provisions
23.1. The contract cannot be interpreted in such a way that it establishes a corporate relationship or a joint venture of a similar kind between the parties or authorises one party to act as a representative of the other party, and, unless expressly stipulated otherwise in the contract, neither party can act in the name of the other party or otherwise obligate the party. The customer is not entitled to transfer the contract – in full or in part – to third parties or to assign claims against Telefónica Germany arising from the contract to third parties without the prior written consent of Telefónica Germany. Telefónica Germany is entitled to transfer the contract to a company with an equity investment in Telefónica Germany or companies affiliated with Telefónica Germany within the meaning of sections 15 ff. of the Aktiengesetz (AktG – German Companies Act). Assignments pursuant to section 354a of the Handelsgesetzbuch (HGB – German Commercial Code) are not affected by the above regulation.
23.2. Unless stipulated otherwise in the contract, the contract can only be amended by a written amendment agreement, which must be duly and properly signed by authorised representatives of the two parties. This also applies to any amendment of this requirement for written form itself.
23.3. Telefónica Germany is entitled to analyse information from the customer in the course of optimising the contractual service.
23.4. The invalidity of individual clauses of these general terms and conditions does not affect the validity of the other clauses.