autosen gmbh General Terms and Conditions of Business

These autosen gmbh General Terms and Conditions of Business (T+Cs) apply for all supplies and services of autosen gmbh towards its customers. The T+Cs comprise six parts:

A.      The General Conditions of Supply for Products and Services of the Electrical Industry (“Green Supply Conditions” – GSCs)), whereat autosen gmbh is the “Supplier”; they apply for all supplies and services of autosen gmbh),

A. 1   Special Regulations for Private Customers (Consumers)

B.      The Regulations re. Packaging/Disposal of Electrical and Electronic Equipment,

C.      The Warranty Conditions for autosen Catalogue Products,

D.      The Special Terms and Conditions (for short: STCs, they apply for using the IoT services of autosen gmbh as the “Supplier”),

E.      The Conditions of Use for IoT Services of autosen gmbh in Connection with the apollo Software Product (NB apollo) and

F.      "NO RE-EXPORT TO RUSSIA" CLAUSE.

 

A.      General Conditions of Supply for Products and Services of the Electrical Industry (“Green Supply Conditions” – GSCs)

I.       General Provisions

• Legal relations between the Supplier and Purchaser in connection with supplies and/or services of the Supplier (hereinafter: “Supplies”) shall be solely governed by the present GSCs.

General Terms and Conditions of Business of the Purchaser, alterations and supplements to these T+Cs apply only if they have been agreed with the Managing Director entered in the Trade Register and authorised to represent or agreed with the registered proxy of the Supplier (management board). Verbal agreements and declarations of other persons who have not been particularly authorised by the Supplier’s management board are effective only if they have been confirmed by the management board.
Regarding orders in the Supplier’s online shop, the Supplier’s e-mail regarding accepting the order is dispositive pursuant to the Purchaser’s shopping cart, as governed below in point 8.

• In the autosen online shop, the Purchaser can conclude the purchase contract in German, French, Czech, Italian, Dutch, Spanish or English.
• The Supplier stores the contract text and sends the order data to the Purchaser by email. The Purchaser can consult the T+Cs at any time at https://autosen.com/terms. The Purchaser can consult prior orders in its customer account.
• The Supplier shall reserve its ownership and copyright law-based use and utilisation rights without limitation to all quotations, drawings and other documents (hereinafter: “Documents”). The Documents shall not be made accessible to third parties without the Supplier's prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser's Documents; these may, however, be made accessible to those third parties to whom the Supplier has rightfully subcontracted Supplies.
• The Purchaser has the non-exclusive right to use standard software and firmware, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed devices. Without express agreement the Purchaser may make one back-up copy of standard software.
• Partial Supplies are allowed unless they are unreasonable for the Purchaser to accept.
• The term “claims for damages” used in these GSCs also includes claims for indemnification for wasted expenditure.
• The representation of the products in the autosen online shop does not constitute a legally binding offer but is only an online catalogue of non-binding character. By clicking the “Complete Purchase” button, the Purchaser submits a binding order for the goods contained in the shopping cart. The confirmation of the order receipt takes place together with the acceptance of the order immediately after it is submitted by means of an automated e-mail. With this e-mail confirmation, the purchase contract has been brought about.

 

II.      Prices, Terms of Payment and Set-Off

• For business customers (businesspersons according to Para. 14 German Civil Code), the prices are quoted ex works excluding packaging plus the valid statutory value-added tax in each case. For consumers according to Para. 13 German Civil Code, the prices are quoted including statutory value-added tax. This requires the consumer to choose the correct display option in the online shop as intended for consumers / private customers or for a business customer to choose the option intended for business customers.
• If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e.g. for travelling and transport as well as allowances.
• Payments shall be made free Supplier's paying office.
• The Purchaser may set off only those claims which are undisputed or non-appealable.
  
• For its order, the Purchaser may choose from the following payment types: advance payment, “Sofortüberweisung” immediate payment (Klarna Bank AB payment service) as well as PayPal plus (PayPal (Europe) S.à r.l. et Cie, S.C.A. payment service) with the options of direct debit, credit card and PayPal Purchase on Account if the respective payment type is available for the current order.
• If the “advance payment” type is chosen, the Purchaser completes the order, receives an order confirmation and invoice, and then pays the invoice amount within the payment deadline stated therein into the Supplier’s account. The Supplier then dispatches the ordered goods and/or renders the ordered Service.
• If the Purchaser chooses the Sofortüberweisung payment type, it is guided from the autosen online shop to the online form of the Klarna Bank AB payment service (or Sofort GmbH, a Klarna subsidiary); if applicable, it creates a Klarna user account and then enters the required bank details. The “Sofortüberweisung” means that the Supplier receives the bank transfer credit immediately once the order is complete and order confirmation is sent.
• If the Purchaser chooses the PayPal plus payment type, it is guided from the autosen online shop to the online form of the PayPal (Europe) S.à r.l. et Cie, S.C.A. payment service; if applicable, it creates a PayPal user account and then enters the required bank details.

If the Purchaser chooses PayPal payment by direct debit, the Supplier deducts the invoice amount from the PayPal (Europe) S.à r.l. et Cie, S.C.A. payment service when the goods/Services have left the Supplier’s warehouse. The PayPal (Europe) S.à r.l. et Cie, S.C.A. service provider informs the Purchaser in advance if PayPal is going to charge this invoice amount to the Purchaser’s account (“Pre-Notification”).
If the Purchaser chooses the PayPal credit card option, the Purchaser account is charged when the goods/Service have left the Supplier’s warehouse.
If the Purchaser chooses the PayPal Purchase on Account option, the Purchaser receives the goods and/or Service and then pays the Supplier’s invoice to PayPal (Europe) S.à r.l. et Cie, S.C.A.. PayPal (Europe) S.à r.l. et Cie, S.C.A. acquires the invoice receivable from the Supplier and credits to the Supplier the invoice amount right at the due date.

• For the payment types of the Sofort GmbH and PayPal (Europe) S.à r.l. et Cie, S.C.A. service providers, the Purchaser contracts these service providers with the payment processing of its order. For this purpose, the Purchaser concludes a contract of use with each service provider pursuant to the provider’s conditions; additionally, these service providers verify the credit rating and creditworthiness of the Purchaser under their own responsibility.

6.       In addition to the payment types pursuant to point 5, business customers have the Purchase on Account payment option, which involves the Purchaser transferring the invoice amount to the Supplier following receipt of the goods. However, the Supplier reserves the right to decide whether it wants to offer this payment type on an order-specific basis, and to allow the Purchaser’s credit rating to be checked.

 

III.    Retention of Title

• The Supply objects (“Retained Goods”) for which the purchase price demand becomes due immediately or for which it was agreed that the purchase price demand has a payment period of up to 30 days inclusive following Supply, Supply with erection/assembly or invoice receipt remain property of the Supplier until payment has been made in full.
• In all other cases, the items pertaining to the Supplies (Retained Goods) shall remain the Supplier's property until each and every claim the Supplier has against the Purchaser on account of the business relationship has been fulfilled. If the combined value of the Supplier's security interests exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which security interest it wishes to release.
• For the duration of the retention of title, the Purchaser must not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
• Should the Purchaser resell Retained Goods, it assigns to the Supplier right at present all claims it will have against its customers from the resale, including any collateral rights and all balance claims as security without any subsequent declarations to this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect to the Retained Goods, the Purchaser shall assign to the Supplier such fraction of the total price claim as is attributable to the price of the Retained Goods invoiced by the Supplier.
• a)       The Purchaser may process, amalgamate or combine Retained Goods with other items. Processing is made for the Supplier. The Purchaser shall store the new item thus created for the Supplier, exercising the due care of a diligent businessperson. The new item is considered Retained Goods.
• Right at present, the Supplier and Purchaser agree that if Retained Goods are combined or amalgamated with other items that are not the property of the Supplier, the Supplier shall acquire co-ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new item is considered Retained Goods.
• The provisions on the assignment of claims according to No. 4 above shall also apply to the new item. The assignment, however, shall only apply to the amount corresponding to the value invoiced by the Supplier for the Retained Goods that have been processed, combined or amalgamated.
• Where the Purchaser combines Retained Goods with real estate or movable goods, it shall, without any further declaration being necessary to this effect, also assign to the Supplier as security its claim to consideration for the combination, including all collateral rights for the pro-rata amount of the value the combined Retained Goods have on the other combined items at the time of the combination.
• Until further notice, Purchaser may collect assigned claims relating to the resale. The Supplier is entitled to revoke the Purchaser's permission to collect funds for good reason, including, but not limited to delayed payment, suspension of payments, start of insolvency proceedings, protest or justified indications for overindebtedness or pending insolvency of the Purchaser. In addition, the Supplier may upon expiry of an adequate period of notice disclose the assignment, realize the claims assigned and demand that the Purchaser informs its customer of the assignment.
• The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties. If a reasonable interest can be proven, the Purchaser shall, without undue delay, provide the Supplier with the information and/or Documents necessary to assert the claims it has against its customers.
• Where the Purchaser fails to fulfil its duties, fails to make payment due, or otherwise violates its obligations, the Supplier shall be entitled to rescind the contract and take back the Retained Goods in the event of continued failure following expiry of a reasonable remedy period set by the Supplier; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Purchaser shall be obliged to return the Retained Goods. The fact that the Supplier takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless the Supplier so expressly declares.

 

IV.    Deadlines for Supplies; Delay

• Deadlines set for Supplies shall be binding only if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, deadlines set shall be extended reasonably; this shall not apply if the Supplier is responsible for the delay.
  
• If non-observance of the set deadlines is due to:
• force majeure, such as mobilization, war, terror attacks, rebellion or similar events (e.g. strike or lockout);
• virus attacks or other third-party attacks on the Supplier's IT systems occurring despite protective measures in place that complied with the principles of proper care;
• hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which the Supplier is not responsible; or
• the Supplier not being supplied on time or properly,

the deadlines are extended appropriately.

• If the Supplier is responsible for the delay (hereinafter referred to as “Delay”) and the Purchaser has demonstrably suffered a loss therefrom, the Purchaser may claim compensation of 0.5 % for every completed week of Delay, but in no case more than a total of 5 % of the price of that part of the Supplies which could not be put to the intended use due to the Delay.
• The Purchaser's claims for damages due to delayed Supplies as well as claims for losses in lieu of performance exceeding the limits specified in No. 3 above are excluded in all cases of delayed Supplies, even upon expiry of a deadline set to the Supplier to effect the Supplies. This shall not apply in cases of liability based on intent, gross negligence, or due to loss of life, bodily injury or damage to health. The Purchaser may revoke the contract based on statute only in cases where the Supplier is responsible for the Delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
• At the Supplier's request, the Purchaser shall declare within a reasonable period of time whether it is revoking the contract due to the delayed Supplies or is insisting on the delivery of the Supplies.
• If due to the Purchaser's request dispatch or Supply is delayed by more than one month after notification of the readiness for dispatch was given, the Purchaser may be charged for every additional month or part thereof storage costs of 0.5 % of the price of the items of the Supplies, but never more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.

 

V.      Transfer of Risk

• Even where Supply has been agreed freight free, the risk shall pass to the Purchaser as follows:
• if the Supply does not include erection or assembly at the time when it is shipped or picked up by the carrier. Upon the Purchaser's request, the Supplier shall insure the Supply against the usual risks of transport at the Purchaser's expense;
• if the Supply includes erection or assembly, at the day of taking over in the Purchaser's own works or, if so agreed, after a successful trial run.
• The risk shall pass to the Purchaser if dispatch, Supply, the start or performance of assembly or erection, the assumption in the Purchaser's own works, or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.

 

VI.    Erection and Assembly

Unless otherwise agreed in written form, erection and assembly shall be subject to the following provisions:

• The Purchaser shall provide at its own expense and in due time:
• all earth and construction work and other ancillary work outside the Supplier's scope, including the necessary skilled and unskilled labour, construction materials and tools;
• the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and lubricants;
• energy and water at the point of use including connections, heating and illumination;
• suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the assembly personnel, including sanitary facilities as appropriate in the specific circumstances; furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the assembly personnel at the site;
• necessary protective clothing and protective devices due to particular conditions prevailing on the specific site.
• Before the assembly work starts, the Purchaser shall without prompting make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
• Prior to erection or assembly, the materials and equipment necessary for the work to start must be available on the site of erection or assembly, and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the site of erection or assembly must be level and clear.
• If erection, assembly or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling expenditure of the Supplier or the assembly personnel.
• The Purchaser shall attest to the hours worked by the assembly personnel towards the Supplier at weekly intervals and the Purchaser shall immediately confirm in written form if erection, assembly or commissioning has been completed.
• If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. The same consequences as upon acceptance arise if and when the Purchaser lets the two-week deadline expire or the Supplies are put to use after completion of agreed test phases, if any.

 

VII.   Receiving Supplies

The Purchaser shall not refuse to receive Supplies due to minor defects.

 

VIII. Material Defects

The Supplier shall be liable for material Defects as follows:

• Defective parts or defective Services shall be, at the Supplier's discretion, repaired, replaced or provided again free of charge, provided that the reason for the material Defect had already existed at the time when the risk passed.
• Claims for repair or replacement are subject to a limitation period of 12 months calculated from the start of the statutory limitation period; the same shall apply mutatis mutandis in the case of rescission and reduction. This deadline does not apply:
• insofar as the statutory regulations in accordance with Para. 438 (1) No. 2 (structures and items for structure), Para. 479 (1) (right of recourse) and Para. 634a (1) No. 2 (structural Defects) of the German Civil Code lay down longer periods,
• in the event of intent,
• in the event of a fault having been maliciously not divulged, as well as
• in the event of a composition guarantee not having been observed.

Expense compensation claims of the Purchaser pursuant to Para. 445a German Civil Code (Recourse of the Vendor) are likewise time-barred in 12 months starting from the onset of the statutory limitation period if the final contract in the supply chain is not a purchase of consumables. The legal provisions regarding suspension of the statute of limitations (“Ablaufhemmung”, “Hemmung”) and recommencement of limitation periods shall be unaffected.

• Notifications of Defect by the Purchaser shall be given in text form without undue delay.
• In there are Defect claims, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the material Defect. The Purchaser has no right to withhold payments to the extent that its claim of a Defect is time-barred. Unjustified notifications of Defect shall entitle the Supplier to demand reimbursement of its expenses by the Purchaser.
• The Supplier shall be given the opportunity to repair or to replace the defective good ("Nacherfüllung") within a reasonable period of time.
• If repair or replacement is unsuccessful, the Purchaser is entitled to revoke the contract or reduce the remuneration; any claims for damages the Purchaser may have according to No. 10 shall be unaffected.
• There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works, inappropriate foundation soil, or claims based on particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on Defects attributable to improper modifications, installation and de-installation, or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.
• The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance to the extent that expenses are increased because the object of the Supplies has subsequently been brought to another location than the Purchaser's branch office; this does not apply if such complies with the normal use of the Supplies. This applies mutatis mutandis for expense compensation claims of the Purchaser pursuant to Para. 445a German Civil Code (Recourse of the Vendor) if the final contract in the supply chain is not a purchase of consumables.
• The Purchaser's right of recourse against the Supplier pursuant to Para. 445a German Civil Code (Recourse of the Vendor) is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects.
• The Purchaser shall have no claims for damages based on material Defects. This shall not apply to the extent that a Defect has been fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to health, and/or intentionally or grossly negligent breach of contract on the part of the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Any other or additional claims of the Purchaser exceeding the claims provided for in this Article VIII based on a material Defect are excluded.

 

IX.    Industrial Property Rights and Copyrights; Defects in Title

• Unless otherwise agreed, the Supplier shall provide the Supplies without violating third parties' industrial property rights and copyrights (hereinafter referred to as “IPR”) with respect to the country of the place of Supply only. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Article VIII No. 2 as follows:
• The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for the Supplier under reasonable conditions, the Purchaser may revoke the contract or reduce the remuneration pursuant to the applicable statutory provisions.
• The Supplier's liability to pay damages is governed by Article XII.
• The above obligations of the Supplier shall apply only if the Purchaser immediately notifies the Supplier of any such claim asserted by the third party in text form, does not concede the existence of an infringement, and leaves any protective measures and settlement negotiations to the Supplier's discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
• Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR.
• Claims of the Purchaser are also excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a type of use not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
• In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Article VIII Nos. 4, 5, 8 and 9 otherwise shall apply mutatis mutandis in the event of an infringement of an IPR.
• Where other Defects in title occur, the provisions of Article VIII shall apply mutatis mutandis.
• Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Article X, based on a defect in title, are excluded.

 

X.      Reservation of Fulfilment

• The performance of this contract is conditional upon that no hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or any embargos or other sanctions exist.
• The Purchaser shall provide any information and Documents required for export, transport and import purposes.

 

XI.    Impossibility; Contractual Adjustment

• To the extent that supply is impossible, the Purchaser is entitled to claim damages unless the Supplier is not responsible for the impossibility. The Purchaser's claim for damages is, however, limited to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of liability based on intent, gross negligence or loss of life, bodily injury or damage to health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser's right to withdraw from the contract shall be unaffected.

Where events within the meaning of Article IV No. 2 (a) to (c) substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier's business, the contract shall be adapted taking into account the principles of reasonableness and good faith. To the extent this is not justifiable for economic reasons, the Supplier shall have the right to rescind the contract. The same applies if required export permits are not granted or cannot be used. If the Supplier intends to exercise its right to revoke the contract, it shall notify the Purchaser thereof without undue delay after having realized the repercussions of the event; this shall also apply even where an extension of the Supply deadline has previously been agreed with the Purchaser.

 

XII.   Other Claims for Damages

• Unless otherwise provided for in these General Terms and Conditions, the Purchaser has no claims for damages based on whatever legal reason, including infringement of duties arising in connection with the contract or tort.
• This does not apply if liability is based on:
• the German Product Liability Act (“Produkthaftungsgesetz”),
• in the event of intent,
• gross negligence on the part of the owners, legal representatives or executives,
• malice,
• non-adherence to an assumed guarantee,
• negligent injury to life, limb or health, or
• culpable breach of a fundamental condition of contract (“wesentliche Vertragspflichten”).

However, claims for damages arising from a breach of a fundamental condition of contract shall be limited to the foreseeable damage which is intrinsic to the contract, provided that no other of the above case applies.

• The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.

 

XIII. Venue and Applicable Law

• If the Purchaser is a businessperson, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier's place of business. However, the Supplier may also bring an action at the Purchaser's place of business.
• This contract and its interpretation shall be governed by German law, to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).

 

XIV. Severability Clause

The legal invalidity of one or more provisions of this Agreement in no way affects the validity of the remaining provisions. This shall not apply if it would be unreasonably onerous for one of the parties to be obligated to continue the contract.

XV.   Agreement on the Costs for the Return of Goods

If the Purchaser avails itself of its right of revocation or return pursuant to Art. XVI (below), the Purchaser shall bear the immediate costs of returning the goods.

 

XVI. Contractual Revocation and our Voluntary Right of Return

1.       Contractual right of revocation of 14 days
The Purchaser may revoke its contractual statement within two weeks, without giving reasons, by way of an express declaration (e.g. letter or email) or – if the item has been sent to the Purchaser prior to the expiry of the deadline – by returning the goods.
The following revocation instruction applies in this regard, in which the Purchaser is subsequently addressed with “You”:

2.       Voluntary right of return
Following expiry of the 14-day revocation period pursuant to point 1, the Supplier offers the following voluntary right of return:
The Purchaser may return all products to the Supplier within 16 days following expiry of the 14-day revocation right pursuant to point 1 if the goods are complete and in an unused and undamaged state.
The goods shall be returned to:
autosen gmbh, Annastraße 41, D-45130 Essen.
This return guarantee does not restrict the statutory rights and also not the contractual right of revocation on the part of the Purchaser as described above in point 1.

A.1    Special Regulations for Private Customers (Consumers)
Natural persons sourcing the Supplies and Services of the Purchaser for purposes that cannot be primarily attributed to their commercial or self-employed professional activity are private customers, i.e. “consumers” pursuant to Para. 13 German Civil Code.
For these persons, the above part A (General Conditions of Supply for Products and Services of the Electrical Industry (“Green Supply Conditions” – GSCs) do not apply, rather the statutory regulations, however with the following proviso:

 

I.       Prices and Shipping Costs

The prices stated in the autosen online shop are displayed to consumers including the statutory value-added tax. This requires the consumer to choose the correct display option in the online shop as intended for consumers / private customers.
For each order, there is a shipping fee pursuant to the details stated by the Purchaser in the shopping cart.

 

II.      Order Process and Contractual Conclusion in the autosen Online Shop

• In the autosen online shop, only persons 18 years or older may place orders; such person must make the necessary statements in the online shop form having filled the virtual shopping cart. Additionally, the Purchaser must register for the autosen online shop.
• Regarding orders in the autosen online shop, the Supplier’s e-mail regarding accepting the order is the dispositive contractual content (see point 5 below).
• In the autosen online shop, the Purchaser can conclude the purchase contract in German, French, Czech, Italian, Dutch, Spanish or English.
• The Supplier stores the contract text and sends the order data to the Purchaser by email. The Purchaser can consult the T+Cs at any time at https://autosen.com/terms. The Purchaser can consult prior orders in its customer account.
• The representation of the products in the online shop does not constitute a legally binding offer but is only an online catalogue of non-binding character. By clicking “Complete Purchase”, the Purchaser submits a binding order for the goods contained in the shopping cart. The confirmation of the order receipt takes place together with the acceptance of the order immediately after it is submitted by means of an automated e-mail. With this e-mail confirmation, the purchase contract has been brought about.
• For its order, the Purchaser may choose from the following payment types: advance payment, “Sofortüberweisung” immediate payment (Klarna Bank AB payment service) as well as PayPal plus (PayPal (Europe) S.à r.l. et Cie, S.C.A. payment service) with the options of direct debit, credit card and PayPal Purchase on Account if the respective payment type is available for the current order. The regulations above in Section A, II, 5 a to e apply.

 

III.    Statutory Right of Revocation and Voluntary Right of Return

1.       The Purchaser is entitled to the statutory right of revocation described in the following. In this revocation instruction, the Purchaser is addressed directly with “You”:

2.       Voluntary right of return
Following expiry of the 14-day revocation period pursuant to point 1, the Supplier offers the following voluntary right of return:
The Purchaser may return all products to the Supplier within 16 days following expiry of the 14-day revocation right pursuant to point 1 if the goods are complete and in an unused and undamaged state.
The goods shall be returned to:
autosen gmbh, Annastraße 41, D-45130 Essen.
This return guarantee does not restrict the statutory rights and also not the statutory right of revocation on the part of the Purchaser as described above in point 1.

 

IV.    Reservation of Self-Supply

Supply deadlines are extended towards consumers if the Supplier is not supplied on time or supplied properly; this applies if the Supplier does not receive the supply object within the period despite having previously concluded a congruous cover transaction. If the ordered articles are subsequently permanently not available, the Supplier is authorised to revoke the purchase contract regarding the order.

 

V.      Defect Management

1.       The Purchaser is duty bound to report evident Defects to the Supplier in text form within two weeks of having received the goods; the deadline is deemed met if the notice is sent before the deadline. Defects appearing later shall be reported immediately. The Purchaser shall describe the Defects as precisely as possible.
2.       If the Purchaser reports a fault that the Supplier’s verification does not confirm, and the Purchaser at the time of the report knew that the fault did not exist or was mistaken about such due to carelessness, the Purchaser shall reimburse the Supplier for the loss that has arisen. As part of the above provisions, the Supplier is particularly entitled to demand reimbursement from the Purchaser for the expenses it has incurred, such as for the investigation of the item or the repair demanded from the Purchaser. The Purchaser is entitled to demonstrate that the reported fault does in fact exist, as well as to demonstrate that the Supplier has not sustained a loss or that the loss was less than stated.
3.       If Defects are present, the Purchaser is not entitled to a right of retention if the retention is not in an appropriate relationship to the Defects and the expected costs of supplementary performance (particularly of Defect rectification).

 

VI.    Liability

1.       The Supplier is liable for all culpably caused losses, including those caused by its representatives or vicarious agents in the event of intent and gross negligence.
For

• cases of injury of life, body or health,
• losses subject to the Product Liability Act,
• losses from violating fundamental cardinal duties (those that have to be fulfilled for the contract to be executed on an orderly basis in the first place and that the contractual partner can expect are regularly observed),

violation of composition agreements as well as malicious non-disclosure of Defects
the Supplier is liable also in cases of slight negligence and thus for any culpability also by its representatives or vicarious agents.
If cardinal duties are violated (those that have to be fulfilled for the contract to be executed on an orderly basis in the first place and that the contractual partner can expect are regularly observed), the level of the liability is limited to the loss that can be typically foreseen for the contract if none of the other listed cases above of extended liability likewise applies.
2.       The regulations of number 1 above apply for all claims for damages (particularly for damages besides the Supply and damages in lieu of the Supply), and irrespective of the legal basis thereof, particularly due to Defects, violation of duties from the arising in connection with the contract or tort. They apply also for the claim to reimbursement of wasted expenses.
3.       The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.

 

VII.   Retention of Title

• The Supply item remains the property of the Supplier until payment has been made in full.
• The Supplier reserves ownership of the goods until all claims held by the Supplier have been fulfilled that existed from the entire business relationship with the Supplier right at the time of contractual conclusion or arose later in terms of the respective Supply item. This also applies if individual claims or all of the Supplier’s claims have been included in a current invoice and the balance has been drawn and acknowledged.
• The Retained Goods are entitled to be sold on by the Purchaser as part of orderly business only if it thus assigns all demands it incurs from the resale against customers or against third parties. If Retained Goods are sold on in an unprocessed state or following processing or connection with items exclusively owned by the Purchaser, the Purchaser assigns the full claims arising from the resale to the Supplier. If the Retained Goods are re-sold by the Purchaser following processing/connection with goods not belonging to the Supplier, the Purchaser assigns the claims arising from the resale to the level of the Retained Goods’ value with all collateral rights and priority before the rest. The Supplier shall accept this assignment. Even following assignment, the Purchaser is entitled to collect these claims. The Supplier’s authorisation to collect the demand itself remains unaffected by this; however, the Supplier undertakes not to collect the demands itself for as long as the Purchaser properly meets its payment and other obligations. The Supplier may demand that the Purchaser reports to it the assigned demands and its debtor, states all information required for collection, hands out the associated Documents and reports the assignment to the debtor.

 

VIII. Payment Options and Conditions

• The payment types offered in the online shop apply in each case.
• The purchase price is due in full without deduction or discount. Without further declarations by the Supplier, the Purchaser enters Delay 30 days following Supply if it has not paid.

 

IX.    Assignment

The Supplier is entitled to assign to third parties or pledge its due purchase price demands that have arisen in the context of goods Supply.

 

X.      Dispute Resolution Procedure

The European Commission has provided an online platform to resolve disputes, which can be found under the following link: http://ec.europa.eu/consumers/odr/.
The Supplier is duty bound by law to provide this information. However, the Supplier does not participate in this type of dispute resolution.

 

XI.    Applicable Law

German law under excluding the UN Convention on Contracts for the International Sale of Goods applies for all duties arising from or based on this agreement. This choice of law applies only if does not negate compulsory applicable consumer protection regulations in the country in which the consumer has its habitual residence at the time of its order.

 

B.      Packaging/Disposal of Electrical and Electronic Devices

Packaging
The packaging used by the Supplier meets the ecological requirements for a proper and harmless recycling. Insofar as packaging used by the Purchaser is generated at the customer's site, the Purchaser confirms to the Supplier with acceptance of the goods that it can recycle such packaging according to the Packaging Ordinance and/or Packaging Act and undertake to dispose of the packaging in compliance with the provisions of the Packaging Ordinance or Packaging Act. In this case, the customer shall arrange for recycling of such non-returned packaging as provided for in the Packaging Ordinance and/or Packaging Act, inform the Supplier about type and quantity of such recycled packaging at any time on request, and confirm compliance with this obligation in text form at any time on request. The Supplier shall be entitled at any time – after prior notification with a reasonable period – to check compliance with this obligation at the Purchaser’s site. If the Purchaser does not wish to dispose of such packaging on its part according to the above regulation, the Purchaser shall notify the Supplier in text form without delay after acceptance of the goods. In this case, the Supplier shall afford the customer the opportunity to return such packaging to the Supplier according to the obligations laid down in the Packaging Ordinance and/or Packaging Act. However, the Purchaser bears the cost for returning the packaging.
Disposal of Electrical and Electronic Equipment
After termination of use, the Purchaser undertakes to properly dispose of products supplied at its expense according to the statutory provisions, in particular those of the German Electrical and Electronic Equipment Act (ElektroG). The Purchaser thereby exempts the Supplier from the Supplier’s take-back obligations as a manufacturer pursuant to Para. 19 Section 1 of the German Electrical and Electronic Equipment Act (ElektroG) and from any related third-party claims. The Purchaser shall contractually oblige professional third parties to whom the customer forwards the supplied products to properly dispose of the products after termination of use at their expense according to the statutory provisions, in particular those of the German Electrical and Electronic Equipment Act (ElektroG), and to transfer such obligation in the event that professional third parties forward the products. If the Purchaser violates the obligation to transfer the Purchaser's obligations to its users, it is obliged to take back the supplied products after termination of use at its expense and to dispose of them properly according to the statutory provisions, in particular those of the German Electrical and Electronic Equipment Act (ElektroG).
Scope
The aforementioned regulations under B. do not apply to consumers.

 

C.      Warranty Conditions for autosen Catalogue Products

• The following warranty conditions apply to autosen catalogue products.
• The product is exclusively described in the documentation, in particular in the specification.
• The Supplier warrants the functionality of its products for a duration of 60 months from the Supply of the product as long as it is operated according to the specifications. The minion product group is an exception. The Supplier warrants the functionality of the products with the item numbers MN001 and MV001 for a duration of 24 months from the Supply of the product as long as it is operated according to the specifications.
• The Purchaser shall immediately inspect the product for any possible Defects, at the latest within one month from the Supply, and shall notify any Defects in writing.
• In the event of a complaint, the Purchaser shall return the product to the Supplier’s branch office in charge immediately upon discovering the Defect, within one month at the latest, along with a Defect description and the indication of the autosen article number. The Supplier will examine the product and send an investigation report to the Purchaser upon request.
• If the complaint is justified, the Purchaser will receive a replacement device free of charge. Moreover, the Supplier will reimburse the Purchaser for the expenses incurred due to the Defect, up to the amount of the purchase price. Further claims are excluded unless compulsory legal liability provisions apply.
• For non-rechargeable batteries (primary batteries), the warranty only covers a guaranteed storage period of 24 months, during which time the product will still function prior to initial use. Products that have been damaged due to improper use or improper storage are excluded from the warranty period. Batteries must be stored in a dry place at temperatures of between 10 - 20°C. The warranty periods begin on the date of sale to the commercial customer and end for non-rechargeable batteries at the latest upon expiry of the "best before" date, which is specified on the data sheet. The statutory warranty claims or other contractual conditions agreed with the customer remain unaffected.

 

D.      Special Terms and Conditions (STCs)

These Special Terms and Conditions (hereinafter: STCs) are special autosen gmbh terms and conditions of business. These STCs apply on a supplementary basis to the General Terms and Conditions of Supply for products and services in the Electrical Industry (“Green Supply Conditions” – GSCs, part A) for using the IoT Services of autosen gmbh as the “Supplier”. The IoT Services of autosen gmbh are available to business customers only (businessperson according to Para. 14 German Civil Code).

 

I.       Definitions

Supplier:
Business providing Services. This is autosen gmbh.
Customer:
Business purchasing the Services;
User:
The natural person registering on behalf of the customer with the Supplier for the customer, enabling the customer to source the Services;
Parties:
Customer and Supplier taken together, with the customer duty bound to instruct the use to adhere to these STCs;
Service(s):
Services offered by the Supplier via the IoT platform; The IoT platform is a platform for the Internet of Things (“IoT”). Gateways can be connected and managed via the IoT platform pursuant to the respective operating instructions. The Supplier’s Services enable data to be provided, visualised and evaluated by the user on the IoT platform by Software-as-a-Service, as described in the operating instructions; these STCs therefore apply for the Supplier’s “autosen.cloud” Services, as well as all Services with autosen.cloud functionalities, which are rendered by the Supplier under a different name (so-called “white labelling”);
Tenant:
a certain part of a Service installation instance, enjoying its own logical database and configuration, as well as its own user management and custom functionalities for the tenant; a tenant is accessible via a unique URL. URL is an abbreviation for Uniform Resource Locator; this is an address defining a resource (in this case: the tenant or subtenant, see below) in a network.
Subtenant:
a certain part of a Service installation instance, assigned to a tenant and enjoying its own logical database and configuration, as well as its own user management and custom functionalities for the subtenant; a subtenant is accessible via a unique URL.
Confidential information:
any information in any form, such as, but not limited to, information about transactions, business ventures, finances, technical processes, computer software (such as, but not limited to, underlying concepts, organisation, architecture, source code and object code), intellectual property rights, compilations of two or more such individual pieces of information, whether or not any individual piece of information is confidential per se, which comes to the attention of a party by virtue of its inclusion in the contract, and any information which is or may be derived or obtained from such information; information shall be handled particularly confidentially and secretly regarding Services’ functionality, the underlying software functions and functions, structure and design of tenants and subtenants, and the log-in data to the user accounts.
Contract:
the contract regarding Supply of Services as defined by the Supplier in these STCs for use towards companies in business transactions; these STCs together with all further dispositive general Terms and Conditions of Business, annexes, lists and appendices for Services and/or goods contracted by the customer; the General Terms and Conditions of Business are excluded.
Operating instructions:
The operating instructions are a fixed component of the contract in the form of a user manual that customers can view in the Download area on the product website. The Supplier provides the operating instructions at its choosing in English or German.
Gateway:
The hardware denoted as io-key.

 

II.      Scope

These STCs apply for providing Services pursuant to Section I.

 

III.    Registration

(1)     To access services and use them, the customer must register by way of a user and create user accounts through this user in a Tenant environment. To create an account, the user must divulge all requested professional information regarding its person and create a user name and a password (“account information”). It is the customer’s responsibility to instruct the user acting on its behalf accordingly. The customer is duty bound to report exact, current and complete account information and shall instruct the user(s) acting on its account accordingly. The Supplier reserves the right to block or delete an account or a tenant if the registration or account information stated later is or becomes inexact, incorrect or misleading.
(2)     The customer is responsible for maintaining the confidentiality of its account information; it undertakes to implement the necessary state-of-the-art technical and organisational measures and inform the Supplier if its account information has been lost, stolen or an unauthorised third party has obtained knowledge of such or it has been compromised in another manner. The customer will instruct users acting on its behalf accordingly.
The customer bears the responsibility for all activities rendered through its account.
(3)     The customer is responsible for creating security guidelines to prevent the unauthorised access to accounts and customer gateways. In particular, the Supplier cannot be held responsible for data protection violation or misuse of devices due to the use of insecure passwords or insufficient implementation of security measures on the part of the customer or to the equipment or gateways used by the customer.

 

IV.    Object of Services and Rights of Use

1.       Object of Services; Availability
(1)     The Supplier provides to the customer the services on the agreed subtenant at the transfer point; this is the interface of the subtenant to the network to which the subtenant is connected with its URL.
(2)     The Supplier undertakes to implement all necessary expert measures as required to connect the subtenant to the internet to enable the subtenant to be responsive for incoming customer enquiries, as well as for the data on the subtenant to be retrievable for the customer and/or its user. The customer is aware that limited line capacities and transmission speeds of the infrastructure not provided by the Supplier means that fault-free internet access cannot be granted.
(3)     The maintenance windows of tenants and subtenants are excluded from the owed availability. These can be viewed on the https://status.cumulocity.com and https://status.autosen.cloud websites.
In the maintenance windows, proper data processing by the services may be interrupted or impaired during the maintenance.
The Supplier makes express reference to the following:
If the customer allows data to be processed by Supplier’s Services in the maintenance window, maintenance may cause the data processing to be impaired so that it is not complete and correct. This can be also only be detected afterwards if the processing was interrupted entirely. Processing interruptions can be detected via the autosen.cloud customer account for the previous 14 days as standard; after this time, impairments to processing cannot be detected.
Therefore, the Supplier advises against using the Services during the maintenance windows.
(4)     The customer is duty bound to report disruptions or impairments to the Services to the Supplier immediately and state the extent of such. If the customer does not cooperate in this manner, Para. 536c German Civil Code applies mutatis mutandis.
2.       Rights of use
(1)     Subject to these STCs and against payment of the remuneration [Section IX], the Supplier grants to the customer a limited, non-exclusive right to access the Services at the agreed Supply Point pursuant to Clause 1 and (a) to use Services exclusively on a separate subtenant solely for its own internal business purposes, (b) connect its own gateways to Services only using the APIs provided by Supplier or its licensor or its licensor's licensor, (c) use the Services exclusively with autosen's corresponding gateway(s).
(2)     Notwithstanding the foregoing, the customer may permit individual third-party users (e.g. service providers) to access and use the Services on the customer's relevant subtenant, but only in accordance with written or textual terms that: (a) are at least as restrictive as the provisions contained in these STCs, (b) do not contain any false or misleading representations or assurances or guarantees with respect to the Supplier of the Services or its licensor, (c) adequately protect the confidential information and intellectual property rights of the Supplier or its licensor, and (d) are within the scope defined in Section IV (1) of these STCs.
In this case, the customer sets up a user account which the third party and/or its employees are able to use for the customer. The customer instructs the third party pursuant to Section III (above) to register and oblige itself towards the Supplier to observe these STCs.

V.      Usage Restrictions

(1)     The right granted to the customer to use the Services pursuant to these STCs is subject to the following restrictions. Nothing in these STCs shall be construed by inference or otherwise to grant to the customer any access to the program code or source code of the Services or the underlying software (or any portion thereof) or any right to install the underlying software or any portion thereof locally on any system of the customer or any third party.
(2)     The customer moreover must not:
copy, create derivative works of, assign (e.g., sell, resell, rent, loan), assign, timeshare or otherwise commercially exploit the Services, or make the Services available to any third party, including any parent, subsidiary or affiliate, except as permitted by these STCs or by mandatory applicable law; this does not affect the right of the customer to acquire the gateways of autosen gmbh for a third party and to either provide the Services of the Supplier for this purpose to the third party or to let the third party use the gateways, provided that the third party complies with the obligations of these terms of use and the registration process according to Section III (above) is carried out correctly;
b)      inhibit or interrupt the integrity or Supply of the Services or the data therein (for example, by carrying out performance tests if not agreed by the parties in writing);
c)       attempt to obtain unauthorised access to Services or the associated systems or networks;
d)      disseminate output-related information about the Services or the underlying software;
e)       use the configuration and reporting options of the Services for other purposes as those defined in these STCs; or
f)       use the Services otherwise in a manner that is not: (i) consistent with valid law (e.g. the transmission of unlawful data/information or data/information violating third-party ownership rights); or (ii) expressly permitted pursuant to these STCs.
g)      download, procure and/or grant access to underlying software or services, technologies or other information from the Services or otherwise export or re-export such except for the manner expressly stated in these STCs and under observance of all valid national and international laws and regulations. The customer undertakes to indemnify the Supplier from any liability resulting from or in connection with a violation by the customer of this clause, hold the Supplier harmless from such and protect the Supplier from such. The Supplier reserves the right not to perform the contract in the affected parts or in full if national or international export regulations or foreign trade laws or restrictions regarding the destination country/customer/use under embargoes or other sanctions prohibit the provision of export controlled goods (dual use goods) and services to the customer under the present STCs. The customer will be notified if an appropriate official export licence is required by national or international export control authorities, and the Supplier may defer provision of affected Services until all required licenses are obtained. In the event of a change in relevant export classifications or regulations, the Supplier may defer or suspend provision of the affected Services until all required approvals are obtained and, if such approvals are not obtained, cease provision of the affected Services.

 

VI.    Third-Party Software/Open Source Software

The software may include components that are restricted by specific third-party licence terms or by an open source licence. The relevant parts are reproduced in the operating instructions with the licence text valid for such to the extent as demanded by the respective licences.

 

VII.   Reservation of Rights and Rights to Data

1.       All confidential information and all intellectual property rights and title to the Services (to the extent that they do not include elements belonging to the customer or third parties) shall remain with the Supplier or its licensor and no interest or ownership therein shall pass to the customer under these STCs. Subject only to the rights expressly granted to the customer by these STCs, all right, title and interest in and to the Services shall remain vested in and the exclusive property of the owner thereof.
2.       The Supplier reserves the right to use the data on the tenant used by the customer for the needs-based design, further development and optimisation of its products and service offers.

 

VIII. Availability of the Services, Maintenance Work

The Supplier warrants that the Services are available as described in the operating instructions.
Services’ availability may be impaired due to technical reasons that cannot be influenced by the Supplier. These include, in particular, third parties acting not on behalf of the Supplier, technical internet conditions which the Supplier cannot influence, as well as force majeure. Hardware and software, as well as technical infrastructure used by the customer, may influence the Supplier’s Services. The Supplier also cannot influence the availability and output of the internet connection required for the customer to obtain the Services. To the extent that such circumstances influence the availability or functionality of the Services rendered by the Supplier, this shall have no effect on the contractual conformity of the Services provided.
In the maintenance windows, proper data processing by the Services may be interrupted or impaired during the maintenance. Section IV, point I subsection (3) above applies.

 

IX.    Payment

(1)     The remuneration and payment conditions are determined in the autosen online shop and in the order confirmation issued by the Supplier.
(2)     If the customer chooses payment by a direct debit procedure, the customer authorises the Supplier revocably to deduct the payments to be paid by the customer when they become due by way of direct debit from the customer’s account; this shall take place using the IBAN, BIC and exact name of the financial institution holding the account as stated by the customer.
(3)     If the customer is in default of payment by more than four weeks, the Supplier shall be entitled to block access to the Services, having issued a prior warning and set a reasonable deadline not honoured by the customer. The Supplier’s payment claim shall not be affected by this blocking action. Access to the Services shall be restored immediately once the outstanding payments have been received in full. The right to block access shall be available to the Supplier as a milder alternative to its right to exercise extraordinary termination.
(4)     In case of only partial use of the services, termination or suspension of the services, the customer is not entitled to reimbursement of the remuneration.

 

X.      Term and Termination

(1)     The term of the contract is based on the information in the order confirmation issued by the Supplier.
(2)     Each party may terminate a contract with a term of one (1) month with a notice period of one (1) month to the end of the following month and a contract with a term of one (1) year with a notice period of (1) month to the end of the respective year without stating reasons.
(3)     The right of extraordinary termination for good cause shall not be affected. Good cause shall be in particular: (i) the initiation of settlement or insolvency proceedings on the assets of the customer; (ii) breach of payment obligations by the customer despite being issued a warning and set reasonable deadline by the Supplier, and still failing to honour it; (iii) breach on the part of the customer of its obligation to maintain an appropriate level of IT security or non-installation or incorrect installation by the customer of security updates provided by the Service provider; (iv) breach of other key provisions of this contract, in particular if the customer continues to violate its obligations despite written warning.

 

XI.    Duties of the Supplier

During the contractual term, the Supplier has the following duties:
(1)     In exchange for payment of the fee, the Supplier shall provide Services for use by the customer and/or its users as described in these STCs.
(2)     The Supplier shall undertake all economically reasonable endeavours to make the Services accessible to the customer subject to availability of third-party infrastructure (e.g. IaaS), provision, availability of third-party networks, communication facilities and force majeure.
(3)     The Supplier shall implement economically reasonable security measures in providing the Services.
(4)     The Supplier shall implement the measures pursuant to Article XIX (below) for the connection between the gateway and the tenant and/or subtenant; The Supplier is not responsible for the wireless connection being available in the gateway’s location.
The wireless connection available with the customer, i.e. the mobile network that can be addressed by the gateway, must be continuously sufficient to transmit the sensor data to the tenant on the Supplier’s IoT platform.

 

XII.   Obligations of the Customer

During the contractual term, the customer has the following duties:
(1)     When a dispute arises, the customer shall inform the Supplier about the Service dispute and observe all appropriate supplier instructions in the context thereof.
(2)     The customer shall instruct the users it deploys to fulfil all duties assigned to the user or customer in these STCs.
(3)     The customer alone is responsible for all customer data transmitted to the Supplier or uploaded into the Services, saved therein or transmitted using such, as well as for use of the Services. This responsibility includes (however not exhaustively) enforcing the rights and approvals relating to data protection which may be specified by local law or the customer’s internal guidelines and creating back-up copies to avoid losses or damage.
(4)     The customer provides assurance and declares that it implements state-of-the-art technical and organisational measures to ensure, among others, confidentiality, authenticity and integrity, warranting that access to the Services is restricted pursuant to these STCs. Additionally, the customer is duty bound to instruct its users to keep their log-in data confidential and to protect such against unauthorised access.

XIII.   Warranty

(1)     Public material (e.g. marketing material) containing technical data, specifications or statements on Services shall not be valid to describe Services. If the Services are used consistent with these STCs, the Supplier warrants that the Services conform to the operating instructions; insignificant and minor deviations from the operating instructions are excluded from this warranty. The Supplier does not warrant that the Services fulfil the customer’s requirements or that the Services run without interruption or fault.
(2)     The requirement for a claim to arise due to violation of Service duties (“Service duty violation”) is (a) the customer must send a notification to the Supplier immediately after a Service duty violation arises with information and description of the course of the Service duty violation, the consequences of the Service duty violation and the circumstances under with the Service duty violation has arisen; and (b) the Service duty violation must be reproducible and demonstrable.
(3)     If the above requirements have been fulfilled and the Supplier is culpable for the Service duty violation, the Supplier shall rectify the Service duty violation within an appropriate Service deadline (e.g. by rectification or by-passing). Apart from this, customer Defect claims regarding the Services are subject to the statutory regulations for rental contracts (Para. 536 et seqq. German Civil Code). However, the Supplier’s responsibility for Defects that were present at the commencement of the contract irrespective of culpability (Para. 536a (1) sentence 1 variant 1 German Civil Code), as well as the customer’s right of rectifying the Defects itself pursuant to Para. 536a (2) German Civil Code, shall be excluded. Further guarantee claims are excluded. The Liability/Holding Harmless sections of these STCs, as well as the Warranty and/or Liability Restrictions from the General Conditions of Supply for Products and Services of the Electrical Industry (“Green Supply Conditions” – GSCs) for use in business transactions towards companies or other additional and applicable conditions of the Supplier remain unaffected by this.
(4)     The customer recognises that the Services must not be used for risky applications for which precise locations or characteristics on maps are dispositive for the customer, such as for use of the Services by emergency services. The customer recognises that the Services must not be used as part of performance tests or stress tests without express consent of the Supplier in text form. The Services must not be intentionally overloaded for test purposes or to check the performance boundaries of connected gateways or the Services themselves. The customer must implement measures to avoid unintended overloading.

XIV. Liability/Holding Harmless

(1)     Irrespective of the legal foundation, the Supplier is liable without restriction for any losses as a consequence of intentional acts or inaction or gross negligence and for claims due to losses from injury to life, body and health, for which general liability would not be enforceable. In cases of simple or slight negligence, the Supplier is liable only for violations of a fundamental contractual duty (“cardinal duties”). Cardinal duties are contractual obligations that have to be fulfilled for the contract to be fulfilled on an orderly basis in the first place and that the customer trusts or can trust are regularly observed. In the legally permissible scope: (i) the Supplier is not liable for a lack of economic success, lost profits and indirect losses and (ii) liability pursuant to the above clauses is restricted to typical, foreseeable losses, however absolutely does not exceed that overall amount of remuneration(s) consistent with relevant order volume. Article VIII (3) sentence 3 (above) remains unaffected by this.
(2)     As part of these STCs, the Supplier does not assume any liability for claims based on (a) Services that have been altered by someone other than the Supplier or a third party expressly deployed by the Supplier; (b) Use of a different edition of fat clients or plug-ins than the current edition provided to the customer to access the Services and use them if the violation could have been avoided if the current version had been used as provided to the customer; (c) Use of the Services together with customer data if the violation claim can be traced back to the use with this data; (d) Insecure Service use.
(3)     The customer must exempt, protect and hold harmless the Supplier against actions brought by a third party against the Supplier or the Supplier’s licensor if they are based directly on an accusation resulting from: (a) the access to or use of customer data with the Services; or (b) the alteration or use of the Services with the customer’s applications violating third-party intellectual property rights or business secrets and settle the compensation sums or costs involved in resolving the action and ultimately imposed on the Supplier as part of such an action, and including among others appropriate lawyer fees, provided that the Supplier: (i) informs the customer immediately of such an action; and (ii) sends to the customer comprehensive authorisations, information and support to defend against such a claim; and (iii) cedes to the customer the sole control over defending against such a claim and all negotiations about a settlement regarding such a claim. The customer is authorised to fulfil such a claim or agree to a settlement without consent granted by the Supplier in advance in text form if the Supplier does not sustain any costs or significant disadvantages by the fulfilment or settlement.
(4)     No party is liable for fulfilling its duties if it is prevented from fulfilling such by force majeure. This includes in particular events that are unforeseeable, uncontrollable and beyond the control of the parties, in particular storms, floods, landslides, earthquakes, storms, lightning strikes, fires, epidemics, acts of terrorism, outbreak of hostilities (whether or not with a declaration of war), riots, explosions, strikes or other industrial unrest, sabotage, interruptions to the energy supply, compulsory expropriation by state authorities.

 

XV. Audit

(1)     The customer consents to the Supplier or its licensor being able to access the Services’ use statistics. Within 10 (ten) working days of having received the prompting of the Supplier issued in text form, the customer shall transmit to the Supplier in text form sufficient additional details based on which the Supplier or its licensor can evaluate adherence to the provisions from these STCs by the customer.
(2)     The Supplier or its licensor, or at the discretion of either the Supplier or its licensor: an independent adviser, shall have the right to access all relevant log-in data following appropriate prior notice to the customer; this relevant log-in data shall be the data held and maintained by the customer regarding the accounts created by the Supplier and enable to verify whether the customer’s use of the Services has been pursuant to the provisions from these STCs.

 

XVI. Confidentiality

(1)     Each party may use the confidential information of a disclosing party only for the purposes of the contract and must keep the information of each disclosing party confidential to the extent that the recipient of confidential information (if any) is not required by law to disclose the confidential information.
(2)     Each party may disclose the other party's confidential information only to those of its employees and agents who have a need to know the confidential information for the purposes of the contract, provided that the employee or agent is under a duty of confidentiality at least to the extent of these STCs.
(3)     The parties undertake to return all Documents and other materials containing confidential information immediately after the Services have been completed.
(4)     The confidentiality obligations from these STCs do not extend to information that (a) was already lawfully possessed by the receiving party before negotiations commenced leading to the contract; (b) is publicly known or becomes known to the public following the date of contract signature (without a violation of these STCs); or (c) must be divulged by compulsory law.
(5)     Each party is duty bound to protect the confidential information by implementing necessary state-of-the-art technical and organisational measures to prevent unauthorised persons from accessing it and prevent unauthorised use of such outside of this contractual purpose.

 

XVII. Data Protection and Data Security; Updates

(1)     Each party undertakes to fulfil its duties as part of dispositive data protection acts, principles and agreements.
(2)     For the purposes of executing the contract, the customer grants the Supplier and any other providers engaged by it the right to copy the data to be stored by the Supplier for the customer, if this is required to provide the services agreed under this contract. The Supplier or other providers engaged by it may also store the data in a backup system or separate backup data centre. To eliminate disruptions, the Supplier is further entitled to make changes to the structure of the data or the data format.
(3)     Insofar as the Supplier processes personal data on behalf of the customer or allows such to happen on IT systems in its technical responsibility, an associated order data processing agreement shall be concluded between the customer and the Supplier.
(4) The tenants, their software and the customer data are protected against unauthorised access using appropriate technical measures. The technical security measures can be found in the operating instructions. The IoT platform with the customer’s tenant will be maintained by the supplier and/or its subcontractor on an ongoing basis. During this maintenance work, Section IV, point 1 subsection (3) applies.
If vulnerabilities become known within the Services in terms of the gateway, the Supplier will inform the customer appropriately and, if applicable, provide security updates. The Supplier reserves the right to install critical software security updates without the explicit consent of the customer.

 

XVIII. Subcontractors

The Supplier may deploy one or multiple subcontractors to fulfil all or a part of its duties from these STCs.

 

XIX. Connection Between Gateway and Tenant

(1)     The Supplier’s gateways are equipped with a coded chip card (SIM); this card creates the technical requirement for the customer to establish a connection to the tenant or sub-tenant in the Federal Republic of Germany via the mobile telecommunication network available at the gateway’s site of use (alternatively, connection to the customer’s defined apollo system pursuant to the following NB apollo under part E); Connections to EU Member States or third countries are available within existing roaming agreements between the participating mobile network operators. It is the Supplier’s task here to provide an activated SIM to the customer for mobile telecommunication, which exclusively establishes the connection between the gateway and the defined tenant. The operating instructions regarding the gateway as acquired by the customer is dispositive here.
(2)     The success of the data connection depends on the mobile telecommunication network being available in the gateway location.
The SIM is activated by a licensed mobile network operator, which the Supplier has enlisted as a subcontractor. Based on the various transmission technologies and availabilities of the respective subcontractor, the connection option of the gateways to the mobile telecommunication network at the gateway may differ. The details on the actually available scope of performance result from the operating instructions.
(3)     The customer may use the SIM only for proper connection between the gateway defined in each case and the tenant / subtenant forming the contractual object (or to the customer’s defined apollo system pursuant to the following NB apollo) and only for its own purposes.
The customer shall always quote correct information to the Supplier, particularly when ordering. Additionally, the customer is duty bound upon prompting to provide all information on using the SIM pursuant to Para. 172 German Telecommunication Act. If required, the Supplier forwards this information pursuant to Para. 172, 173 German Telecommunication Act to its subcontractor and/or the responsible state authorities.
(4)     The customer may cede the Services forming the object of the contract to third parties only under conditions that are not less stringent than those in these STCs. Moreover, the customer must not submit any incorrect or misleading assurances or guarantees relating to the Supplier or its licensor; the customer is duty bound to protect the confidential information and the IPR of the Supplier or its licensor (to the SIM supplier). The customer is not entitled to act as a provider of telecommunications services and to offer mobile telecommunication services, switching or interconnection services to third parties using the SIM provided to the customer for use.
(5)     The customer is moreover duty bound,
a)       immediately notify the Supplier's customer service department of the loss or misplacement of the hardware with the chip card provided to the customer;
b)      immediately report in text form any change in its name or company name, legal form, address or the invoice recipient or have this reported by an authorised third party;
c)       in the event of an official or judicial request for information in connection with the Services within the meaning of these STCs, to provide information requested by the Supplier in its internal relationship with the customer immediately and in particular to transmit to the Supplier, or a third party named by the Supplier, Documents and information required to comply with the request for information in question.
(6)     The chip card installed in the gateway is ceded to the customer for a fee; the customer therefore becomes the owner of such when handed over to it. This does not alter the Supplier’s right to deactivate or block the chip card if the customer violates point XIX subsection (3) to (5) of these STCs or is in payment Delay; if the card is justifiably deactivated or blocked, the Supplier’s full claim to remuneration remains intact. Furthermore, the Supplier is entitled to use OTA (over the air) remote control to carry out proper configuration alterations on the chip card for continued Service rendering, or to download software updates onto such and install them there. These rights continue for the entire contractual term.
All contingents and/or output quantities for mobile telecommunication are linked to use of the tangibly ceded, associated chip card. The Supplier is not duty bound to transfer a remaining contingent that can no longer be used onto a different chip card, or to render a different reimbursement for such.

 

XX.   Reservation of Alteration, Reference, Legal Venue and Applicable Law

(1)     The Supplier shall be entitled for operational reasons and/or reasons of technical development to alter the specifications and functionalities of the Services within the meaning of these STCs and to alter the operating instructions accordingly if the respective alteration does not reduce or impair the essential Service characteristics of the Services within the meaning of these STCs. This might also lead to altered system requirements that need to be observed. Sentences 1 and 2 apply accordingly if third parties from whom the Supplier sources the necessary pre-services to render the Services forming the object of the contract alter their range of services.
(2)     The Supplier is entitled to name the customer in the Supplier’s means of advertising as a customer. Upon appropriate prompting by the Supplier, the customer is duty bound (a) to serve as a reference; and (b) in the context of press releases announcing the relationship between the parties or advertising such, or to render appropriate support for case examples or other marketing material.
(3)     The customer consents to the Supplier and its licensor using the customer’s name, logo and application case on the Supplier’s website, in materials and presentations or on its licensor’s website. The Supplier undertakes to observe the customer’s trade mark guidelines when presenting the customer’s name and logo in its material.
(4)     Article XIII (legal venue and applicable law) of the General Conditions of Supply for Products and Services of the Electrical Industry (“Green Supply Conditions” – GSCs) for use in business transactions towards companies apply accordingly.
(5)     The Supplier is entitled to alter these STCs unilaterally if this alteration appears pertinent or necessary to reflect the legal situation, adjudication from the highest court or other market circumstances, particularly technical framework conditions. If the Supplier intends to carry out such an alteration that is not exclusively based on an adjustment to reflect statutory or official orders, the Supplier will inform the customer of this in text form at least 3 (three) weeks before the alteration becomes effective. The customer is entitled to terminate the contractual relationship effective as of the time that the alteration in question becomes effective. If the customer does not terminate within three weeks of the Supplier’s notification of alteration in text form, the alteration in question becomes a contractual component at the time that it becomes effective. The Supplier will inform the customer of this legal consequence specifically in the notification of alteration.

 

E.      The Conditions of Use for IoT Services of autosen gmbh in Connection with the apollo Software Product (NB apollo)

I.       Area of Application

(1)     Additionally or instead of the Services pursuant to the “Special Terms and Conditions” (STCs, see Section D above), the customer has the option of operating an in-house IT system or an IT system for which it is responsible to integrate the autosen gmbh gateways pursuant to the respective operating instructions and to manage such IT system. This option is available only to business customers, not private customers (consumers).
(2)     For this purpose, autosen gmbh cedes to the customer without a fee as well as for installation and use under own responsibility the “apollo” software pursuant to the separate “End User License Agreement” (EULA) in its dispositive version at the time of order confirmation.

II.      autosen gmbh Services

(1)     For the customer to be able to connect and manage the gateways of autosen gmbh by means of the apollo software on an IT system of its choice under its own responsibility, autosen gmbh provides the customer with the necessary functions of the gateway's firmware; autosen gmbh grants to the customer those rights of use to the firmware which are necessary for connecting and managing the gateways by means of the apollo software. The gateway’s operating instructions are dispositive for the scope of the firmware’s functionalities.
(2) The customer is also entitled to acquire the gateways of autosen gmbh for a third party and to administer them on its IT system or that of the third party by means of the apollo software for the third party, or to leave the administration to the third party, provided that the third party complies with the obligations of these terms of use as well as the EULA of the apollo software.
(3)     The autosen gmbh Services are remunerated metrically. The data quantity is dispositive as processed by the gateway firmware per defined time unit (managed by the customer using apollo) for sending to the customer’s apollo instance. The level of the remuneration as well as the dispositive data quantity and time unit (such as MB per month) are defined in the order confirmation from autosen gmbh; the customer receives this following its order.

III.    Customer Duties and Responsibility

(1)     The customer is responsible itself for installation and operation of apollo software on the system it has chosen.
(2)     The apollo software must be operated exclusively to manage the autosen gmbh gateways.
(3)     If the autosen gmbh gateways are resold to third parties, the customer is duty bound to oblige the third party to observe this NB apollo as well as the EULA and is liable to autosen gmbh for the third party observing such. The same applies if the customer is operating an IT system or allows a third party to do so and autosen gmbh gateways are managed.

IV.    Associated Validity of Section D (“Special Terms and Conditions” – STCs)

Following regulations from the “Special Terms and Conditions” (STCs, see Section D above) apply mutatis mutandis: articles III (Registration, however not for autosen gmbh IoT Services, rather for managing the gateways), VII (Reservation of Rights), IX (Payment), X (Term and Termination), XIII (Warranty), XIV (Liability/Holding Harmless), XV (Audit), XVI (Confidentiality), XVIII (Subcontractor), XIX (Connection Between Gateway and Tenant, however with the proviso that the tenant is replaced with the IT system chosen and operated by the customer with apollo software under own responsibility) and XX (Reservation of Alteration, Reference, Legal Venue and Applicable Law).

F. NO RE-EXPORT TO RUSSIA" CLAUSE

(1) The [Importer/Buyer] shall not sell, export or re-export, directly or indirectly, to the Russian Federation and Belarus or for use in the Russian Federation and Belarus any goods supplied under or in connection with this Agreement that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014 and Article 8g of Council Regulation (EU) No 765/2006.

(2) The [Importer/Buyer] shall undertake its best efforts to ensure that the purpose of paragraph (1) is not frustrated by any third parties further down the commercial chain, including by possible resellers.

(3) The [Importer/Buyer] shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph (1).

(4) Any violation of paragraphs (1), (2) or (3) shall constitute a material breach of an essential element of this Agreement, and the [Exporter/Seller] shall be entitled to seek appropriate remedies, including, but not limited to:
(i) termination of this Agreement; and
(ii) a penalty of 100 % of the total value of this Agreement or price of the goods exported, whichever is higher.

(5) The [Importer/Buyer] shall immediately inform the [Exporter/Seller] about any problems in applying paragraphs (1), (2) or (3), including any relevant activities by third parties that could frustrate the purpose of paragraph (1). The [Importer/Buyer] shall make available to the [Exporter/Seller] information concerning compliance with the obligations under paragraph (1), (2) and (3) within two weeks of the simple request of such information.

 

As of:  march 2025