General Terms and Conditions of ENAiKOON GmbH (GTC)
- General provisions
a. These GTCs apply to all contracts between ENAiKOON GmbH (hereinafter referred to as “ENAiKOON”) and their contractual partners (hereinafter referred to as “customers”), particularly those regarding the purchase of
hardware and software products as well as for the purchase of the following services: ENAiKOON fleet-control-web, ENAiKOON fleet-control-easy, ENAiKOON fleet-control-compact, ENAiKOON M2M-commserver, ENAiKOON data-forwarder, ENAiKOON DGPS-enabler, ENAiKOON MP-route, ENAiKOON OSM-route, ENAiKOON can-66, ENAiKOON driver-id, ENAiKOON buddy-tracker, ENAiKOON v-locator-mobile and ENAiKOON rfid-tracker,
as well as other applications set up on the ENAiKOON M2M-commserver.
b. Contracts are concluded solely on the basis of the following conditions. The customer accepts these conditions when placing an order, registering on the Internet or accepting delivery, even if they conflict with their own
General Terms and Conditions in part or in full.
c. A contract with ENAiKOON cannot be formed until confirmed by ENAiKOON in writing.
d. Termination of or withdrawal from a contract must be effected in writing or by fax to have legal force. - Service content
a. ENAiKOON provides the following services – depending on the scope of the contract:
(1) ENAiKOON fleet-control-web, ENAiKOON fleet-control-easy, ENAiKOON fleet-control-compact:
These applications allow the customer to monitor its vehicles, locate its vehicles and print reports on the movement history of its vehicles.
(2) ENAiKOON M2M-commserver:
ENAiKOON provides the customer with the ENAiKOON M2M-commserver, a platform which allows it to exchange data with mobile objects. The ENAiKOON M2M-commserver stores the transmitted data for a pre-defined
period.
(3) ENAiKOON data-forwarder:
Data that the ENAiKOON M2M-commserver sends or receives can be forwarded to a customer server or received from there. This allows data to be exchanged with other programs used by the customer (e.g. scheduling
software or ERP software).
(4) ENAiKOON DGPS-enabler:
By receiving GPS correction signals, the so-called DGPS (Differential Global Positioning System) signals, can improve the precision of GPS positioning.
ENAiKOON is using technology that allows correction signals to be received and the GPS positions received by the GPS-enabled devices used by the customer to be corrected.
(5) ENAiKOON MP-route/ENAiKOON OSM-route
With these applications, the customer can have the current and previous locations of its vehicles displayed on a map.
(6) ENAiKOON can-66:
This application allows CAN bus data to be assessed. This includes makes it possible to analyse the reasons for increased fuel consumption, engine trouble, engine maintenance cycles etc. and make improvements.
(7) ENAiKOON driver-id:
Using RFID technology, the working hours of mobile staff can be recorded and access to machines, rooms, etc. limited to authorised persons.
(8) ENAiKOON buddy-tracker:
This software, which is compatible with selected mobile telephones, shows the GPS position most recently transmitted by ENAiKOON telematic modules to the ENAiKOON M2M-commserver, along with other data on
every mobile object listed.
(9) ENAiKOON v-locator-mobile:
This software, which is compatible with selected mobile telephones, transmits the current GPS position of the telephone to the ENAiKOON M2M-commserver, allows text messages to be received via GPRS and status
texts and messages to be transmitted between the ENAiKOON M2M-commserver and the telephone.
(10) ENAiKOON rfid-tracker:
This software, which is compatible with selected RFID-capable mobile telephones, allows RFID-TAGs to be read and the data read to be transmitted to the ENAiKOON M2M-commserver via GPRS.
b. ENAiKOON is not responsible for the transport or further processing of data. The customer will require one or several providers, as well as additional application software, for that purpose. Depending on how
data/images are to be sent or processed, e.g. by SMS, MMS, e-mail or radio, third parties may be involved in the process. ENAiKOON accepts no responsibility for transport at this stage.
c. ENAiKOON grants the user a non-exclusive right, limited in place to the user’s computer workstation and in time to the term of this contract, to the online use of software, including all necessary reproductions.
d. ENAiKOON is not obliged to keep the software on its own server, but can use third parties to this end. - Liability
a. ENAiKOON’s liability is excluded unless otherwise agreed below.
b. Exclusion from liability in accordance with point a does not apply to damage caused by the culpable breach of a cardinal contractual obligation in a way which could jeopardise the fulfilment of the contractual purpose.
Cardinal contractual obligations are such as allow the proper performance of the contract at all and on compliance with which the contractual partner regularly depends and may depend. Liability is however limited to
damage which is typical for the contract and that each contractual party ought to have foreseen due to circumstances known to them at the time.
c. Neither will exclusion from liability in accordance with point a apply in the case of damage arising from loss of life, physical injury or damage to health which is due to a negligent breach of an obligation by ENAiKOON or
its legal representatives or subcontractors.
d. Exclusion from liability in accordance with point a will not apply in the event of damage which is due to a wilful or grossly negligent breach of an obligation by ENAiKOON or its legal representatives or subcontractors.
e. Exclusion from liability in accordance with point a will not apply to claims arising from the German Product Liability Act (Produkthaftungsgesetz).
f. Where ENAiKOON’s liability is excluded or limited, the same applies to the liability of ENAiKOON’s legal representatives, employees and subcontractors.
g. If ENAiKOON has issued a warranty for the quality or durability of the goods it has supplied, the contents of such a warranty will not be affected by the above limitation of liability. - Warranty for hardware and software products, Special terms and conditions of sale
a. If the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), the following applies:
(1) The customer must check the goods received. Obvious defects should be reported in writing within 14 calendar days of receipt of delivery. The customer should report hidden defects within 14 calendar days of their
discovery. It is for the customer to prove the date of discovery in the event of disputes. In the event of a breach of the duty to report, the customer is excluded from making warranty claims with respect to the defect in
question.
(2) If the customer requests remedy, ENAiKOON may at its discretion remedy the defect or supply a replacement that is free of defects. In the event of the supply of a replacement, ENAiKOON will supply the customer
with a replacement that is free of defects within 14 days. In the event of the failure of remedial action, the customer reserves the right, at its discretion, to a reduction of the purchase price or to withdraw from the contract; damage claims – to which the limitation of liability in accordance with Point 3 of these General Terms and Conditions applies – will not be affected in the event of the failure of remedial action.
(3) Warranty claims on the grounds of material defects expire one year after the delivery of the goods.
b. If the customer is a dealer/reseller selling ENAiKOON products to the end customer, in addition to point a, the following applies:
(1) The dealer must arruve at an arrangement with its customers equivalent to point a above.
(2) If the dealer assigns warranty claims it is entitled to make against ENAiKOON to a customer or undertakes to do so, it must inform ENAiKOON of this immediately in writing.
(3) Since ENAiKOON, as manufacturer, has technical expertise that makes it better able to remedy material defects, the dealer is obliged to inform ENAiKOON immediately if a customer of the dealer approaches it with
warranty claims. At ENAiKOON’s request, the dealer must ask its customer to contact ENAiKOON directly. Irrespective of this, the dealer must go about remedying any defects in accordance with ENAiKOON’s instructions;
ENAiKOON may also remedy any defects itself.
c. The customer will bear any shipping and COD expenses for the dispatch of the goods after signature of the contract. - Warranty for ENAiKOON services, availability, execution
a. ENAiKOON endeavours to guarantee the maximum possible availability of services. The obligation will be deemed to be performed if the software is available for use by the user 98% of the time in an average month (30
days). ENAiKOON is entitled to carry out maintenance work and servicing activities regularly in order to maintain availability. ENAiKOON may temporarily interrupt the operation of the server for this purpose, at most for
24 hours, without this constituting a service disruption. Where possible, ENAiKOON will inform the customer of this in advance.
In the event of technical or other problems that are beyond ENAiKOON’s control (force majeure, third-party fault etc.), ENAiKOON will take measures without delay (determine party responsible, put in place contingency
measures) to ensure that operation resumes quickly. The customer will pay ENAiKOON for this in the form of a lump sum of EUR 180.00 in each case.
b. Compensation, regardless of fault, for defects that already existed when the contract was signed (Section 536a of BGB) is excluded.
c. ENAiKOON should be informed of defects and disruptions immediately, but no later than within two weeks of them being discovered. ENAiKOON’s liability is excluded for the period in which the customer does not inform
ENAiKOON of a disruption or does not send defective devices to ENAiKOON.
d. ENAiKOON does not accept liability for the availability of the GPS system required for tracking. ENAiKOON would like to point out that it is not presently certain whether the next generation of satellites will be available in
time before the end of the service life of the current satellites, with the result that there could be occasional gaps in tracking. - Obligations of the customer, blocking of services or deliveries
a. The customer guarantees that the address data it has given is complete and correct.
b. The customer is aware that its monitoring systems could send data that is banned under data protection legislation and that it must not use this data to monitor others. In such cases, it will suspend data transmission or
have it modified by the manufacturing firm. ENAiKOON would like to point out that location data may only be disclosed to third parties with the consent of the parties whose position it concerns or whose position it indicates. The customer undertakes to ensure compliance with this provision. ENAiKOON is not liable for misuse of data that results from the customer or a third party transmitting data, using it themselves, accessing it
themselves or making it available to others without the consent of the data subject. The customer must take measures to prevent such data from being made accessible to unauthorised parties. It is obliged to keep access
data made available to it secret from unauthorised third parties and safe from access by unauthorised third parties so that it is impossible for third parties to misuse data for access purposes. Personal passwords should
be changed at regular intervals. Third parties which use the user’s Internet connection with its knowledge and consent are not unauthorised.
c. The customer must ensure that third-party rights are not breached by the use of ENAiKOON’s services. This particularly applies to personality rights, copyrights, copyright-related rights and industrial property rights. The
customer must release ENAiKOON from any legitimate third-party claims that are made on the grounds of the breach of such rights.
d. It is the customer’s responsibility to ensure that only such data or data volumes are transmitted or displayed as is permitted by law. Depending on the monitoring system used, more data may be sent for technical
reasons than is permitted by law. The customer is aware of this.
e. If the customer breaches its obligations arising from this contract, particularly those arising from these GTCs, or breaches legal obligations in connection with them, ENAiKOON may suspend its own services and block
access if a warning setting a reasonable deadline goes unheeded. If third parties make claims against ENAiKOON on the grounds of a breach against the provisions under point b, c and/or d, the customer will release
ENAiKOON from such claims and reimburse ENAiKOON for the costs of a reasonable legal defence and law suit. - Payment of agreed charges
a. ENAiKOON is not obliged to accept any form of payment other than transfers.
b. If the customer defaults on payment, ENAiKOON is entitled without further ado to suspend its own services immediately and, in particular, to block access. The customer will also bear the associated cost of 14 euros per
mobile terminal for reconnection. In the event of default on payment, ENAiKOON is further entitled to levy a handling fee of 5.00 euros per warning.
c. Offsetting against ENAiKOON claims arising from this contract is only possible in the case of claims that are recognised or declared final and absolute or ripe for decision. The customer may enforce a right of retention as
per Section 273 of BGB only on the grounds of such claims. - Exclusive commercial use
ENAiKOON hardware (ENAiKOON locate, ENAiKOON time, ENAiKOON rfid, ENAiKOON inmarsat, ENAiKOON lommy etc.) is intended solely for commercial use. They are registered as so-called b2b devices which are used
solely in places other than private households (Section 6 (3) Sentence 2 of ElektroG (Electronic Equipment Act). The customer therefore undertakes neither to use the modules itself for private purposes nor to make them
available to third parties for their private use for a fee or free of charge. The customer also undertakes not to sell the modules to employees or private third parties unless they prove that the modules will only be used for
commercial purposes. If the customer breaches these obligations, it will be obligated to compensate ENAiKOON for any damage incurred as a result. - Data protection
a. ENAiKOON would like to point out in accordance with Section 33 of BDSG (Federal Data Protection Act) that personal data is stored within the framework of and for the purposes of the performance of the contract.
ENAiKOON wishes, furthermore, to point out that the data may be transmitted to third parties within the framework of and for the purposes of the performance of the contract.
b. ENAiKOON is entitled to process and use the existing data of its customers for its own purposes where this is necessary in the interests of advising customers, advertising and market research and tailoring its services to
requirements. The customer may object to such use of its data at any time. ENAiKOON will provide the customer at any time upon request with full information on the stored data free of charge, if the customer is the
subject of such information.
c. ENAiKOON expressly points out to the customer that comprehensive data protection cannot be guaranteed with the latest technology when data is transmitted on open networks, such as the Internet. Other Internet
users may in certain circumstance also have the technology to breach network security and control communications. The customer itself is fully responsible for the security of the data it transmits and/or stores on Web
servers. - Changes to GTCs
ENAiKOON is entitled to change the General Terms and Conditions provided it notifies the user in writing at least six weeks in advance of the change taking effect. The customer may object to the change within four
weeks of receipt of notification; otherwise the change will be considered approved. ENAiKOON must expressly draw attention to this in the notification. - Concluding provisions
a. All changes, amendments or the full or partial cancellation of the contract must be made in writing, including any change to or cancellation of the requirement for written form.
b. For contracts entered into by ENAiKOON on the basis of these General Terms and Conditions and for any subsequent claims arising from them, whatever their nature, the law of the Federal Republic of Germany applies,
excluding the United Nations Convention on Contracts for the International Sale of Goods. The place of performance and place of jurisdiction for all disputes arising from contracts subject to these General Terms and
Conditions is Berlin-Charlottenburg, provided the customer is a merchant in the sense of the German Commercial Code (HGB). The place of performance is Berlin-Charlottenburg.
c. Should provisions of these General Terms and Conditions are or become invalid this will not affect the validity of the remaining provisions. The parties undertake to replace any invalid provision with a clause fulfilling the
same purpose as, or at least coming close to, the provision the parties would have agreed to achieve the same economic outcome if they had known the provision to be invalid. The same applies in the event of gaps in the
provisions.