(2) If the dealer assigns warranty claims to a customer or undertakes to do so, the dealer must notify ENAiKOON of this in writing without delay.

(3) As ENAiKOON, as the manufacturer, has superior technical expertise in remedying material defects, the dealer is obliged, if a customer asserts warranty claims against it, to inform ENAiKOON immediately. At ENAiKOON’s request, the dealer must ask its customer to contact ENAiKOON directly. Irrespective of this, the dealer must carry out defect rectification in accordance with ENAiKOON’s instructions; ENAiKOON may also carry out the rectification itself.

d. A guarantee for the goods supplied by ENAiKOON shall only exist if this has been expressly stated in the order confirmation for the respective item.

10. Warranty for ENAiKOON Services, Availability, Performance, Browser

a. ENAiKOON strives to ensure the highest possible availability of its services. This obligation shall be deemed fulfilled if the user is able to use the services with an average monthly availability (30 days) of 98%. To maintain availability, ENAiKOON is entitled to carry out regular maintenance and service activities. In doing so, ENAiKOON may temporarily interrupt the operation of the servers, for a maximum of 24 hours, without this constituting a service disruption. ENAiKOON will inform the customer in advance, where possible. In the event of technical or other problems outside ENAiKOON’s control, particularly those caused by third parties such as the relevant mobile network provider or satellite operator (force majeure, third-party fault, mobile network outage, satellite transmission failure, etc.), the customer may commission ENAiKOON to take measures (identifying the cause, initiating substitute measures, etc.) to resume operations quickly. If the customer is an entrepreneur, they shall reimburse ENAiKOON a flat fee of EUR 180.00 for this. The customer is free to prove that no costs were incurred or that they were significantly lower than the flat fee.

b. Liability for damages without fault for defects already existing at the time of conclusion of the contract (§ 536a BGB) is excluded.

c. Defects and disruptions in the availability of the services must be reported to ENAiKOON without delay, but no later than within two weeks of becoming aware of them. ENAiKOON shall not be liable for non-use of the services for the period during which the customer fails to notify ENAiKOON of a disruption despite having knowledge of it or fails to return defective devices to ENAiKOON, where the customer is responsible for such failure.

d. ENAiKOON is not liable for the availability of the GPS system required for tracking. ENAiKOON points out that it is currently uncertain whether the next generation of satellites will be available in time before the current satellites reach the end of their lifespan, which may lead to temporary gaps in tracking.

e. ENAiKOON is not liable for the permanent availability of the GPRS service required for data transmission. ENAiKOON points out that it is possible that network operators may discontinue the service in the future. In this case, ENAiKOON hardware will no longer be able to transmit data, meaning ENAiKOON software may also no longer be usable.

f. ENAiKOON applications are compatible with the current versions of common internet browsers and operating systems. Special compatibility requirements, e.g. functionality within a specific software environment or with internet browsers and operating systems that do not reflect the current state of the art, are – unless expressly agreed – not owed by ENAiKOON. Accordingly, deviations in this respect cannot be considered defects by the customer.

11. Obligations of the Customer, Suspension of Services or Deliveries

a. The customer guarantees that the address data provided by them is correct and complete. The customer shall immediately inform ENAiKOON of any changes to the data stored with ENAiKOON.

b. The customer is aware that their monitoring modules – depending on their intended use – may transmit data that is potentially protected under data protection laws and that such data may not be used to monitor third parties. In the event of data processing that is unlawful under data protection law, the customer must cease data transmission or have the manufacturer modify the modules accordingly. ENAiKOON points out that location data may only be used or disclosed to third parties with the consent of the individual whose position is concerned or can be inferred. The customer undertakes to ensure compliance with this provision and with data protection laws. ENAiKOON shall not be liable for misuse of the data resulting from the customer or a third party transmitting, using, or otherwise making such data accessible without the consent of the data subject. The customer must ensure that such data is not made accessible to unauthorised persons. They are obliged to keep the access data provided to them confidential from unauthorised third parties and to store it securely so that unauthorised access is impossible. The personal password must be changed at regular intervals. Third parties who use the customer’s internet connection with their knowledge and consent are not considered unauthorised.

c. The customer must ensure that their use of ENAiKOON’s services does not infringe the rights of third parties. This particularly applies to personal rights, copyright, neighbouring rights, industrial property rights, and competition law provisions.

d. It is the customer’s responsibility to ensure that only such data or data volumes are transmitted or displayed as are legally permissible. Depending on the monitoring module used and its intended purpose, more data may be transmitted for technical reasons than is legally permissible. The customer acknowledges this.

e. If the customer uses the options offered by ENAiKOON to store data on ENAiKOON storage media, the following additional provisions apply:

(1) Der Kunde räumt ENAiKOON für etwaig urheberrechtlich geschützte Daten und Inhalte, die auf dem Server gespeichert werden, das nicht ausschließliche, nicht übertragbare, örtlich auf den Standort des genutzten Servers und zeitlich auf die Dauer dieses Vertrages beschränkte Recht zur unbegrenzten Vervielfältigung der Daten und Inhalte im Rahmen der Erfüllung der vertraglichen Leistungspflichten ein. Insbesondere darf ENAiKOON Backup-Kopien anfertigen, die im Umfang auf das erforderliche Maß beschränkt sind.

(2) ENAiKOON accepts no responsibility for the content provided by the customer. ENAiKOON is under no obligation to check customer data and content for legality. Should the content stored by the customer on the contractual storage space infringe the law, ENAiKOON is entitled to delete such content immediately.

f. The customer must notify ENAiKOON of faults and defects in the services provided, particularly faults in tracking services, without delay and must reasonably cooperate in their resolution.

g. If the customer breaches their obligations under the contract, particularly under these Terms and Conditions, or violates statutory duties in this context, ENAiKOON may, after an unsuccessful warning with an appropriate grace period, suspend its services and block access. Any suspension caused by behaviour for which the customer is responsible does not release the customer from their obligation to pay the contractually agreed fees to ENAiKOON. Should ENAiKOON be held liable by third parties as a result of a culpable breach by the customer of the provisions under clauses 11 b., c., d., e. and/or f., the customer shall indemnify ENAiKOON against such third-party claims and reimburse ENAiKOON for the costs of appropriate legal defence and enforcement.

12. Use of ENAiKOON SIM Cards

a. If ENAiKOON provides the customer with an ENAiKOON SIM card in addition to the services listed under 4.a., the following provisions under 12.b. to 12.j. shall additionally apply.

b. ENAiKOON provides the customer with a SIM card, coded with an identification number (PIN) and an unlock code (PUK), for the duration of the contract to enable the use of ENAiKOON services. The SIM card may only be used for the purposes contractually agreed between the customer and ENAiKOON. The SIM card does not become the property of the customer and must be returned to ENAiKOON after termination of the contract, unless returning it would be unreasonable due to the specific installation of the tracking module (e.g. where the module is installed in an inaccessible location). If the customer fails to return the SIM card within 2 weeks after being requested by ENAiKOON, they must pay ENAiKOON a flat fee of EUR 19.90 for replacement procurement. The customer may prove that no costs were incurred at all or that they were significantly lower than the flat fee.

c. The customer must keep the SIM card safe and protect it from harmful influences. Any visible defect or damage, as well as the loss or theft of the card, must be reported to ENAiKOON immediately, stating the card number. If the customer initially reports the loss or theft orally, this must be confirmed in writing without delay. In the case of loss through a criminal act by third parties (e.g. theft, embezzlement, etc.), the customer must also immediately report the incident to the police.

d. In the event of loss, the customer shall receive a replacement SIM card. The associated costs are published at www.enaikoon.com and must be borne by the customer.

e. If a code (e.g. PIN or PUK) is required to use a service, the customer is obliged to keep this code secret and not to make it accessible to unauthorised third parties. If, based on established facts, there is a suspicion of misuse by third parties, the customer must immediately change the code or – if the change can only be made by ENAiKOON – instruct ENAiKOON to make the change and inform ENAiKOON of the suspected misuse.

f. If ENAiKOON services are used by unauthorised third parties via the SIM card, the customer shall be liable for all charges incurred until the time of notification to ENAiKOON, unless the customer is not responsible for the unauthorised use. The customer is also liable for any charges and damages incurred as a result of a delay in notifying ENAiKOON if such delay is attributable to the customer.

g. The customer may only use ENAiKOON services in the countries contractually agreed. Further details can be found in the respective data sheets and service descriptions. If the customer uses ENAiKOON services in countries not contractually agreed, higher charges (e.g. roaming fees) may apply. These must be reimbursed by the customer to ENAiKOON. Details on country-specific pricing are available at www.enaikoon.com.

h. The customer must raise objections to invoices in writing within 8 weeks of receiving the invoice.

i. In the event of a dispute between the customer and ENAiKOON regarding whether ENAiKOON has fulfilled an obligation towards the customer under §§ 43a, 45 to 46 para. 2 and § 84 of the German Telecommunications Act (TKG) or under Regulation (EC) No. 717/2007 of the European Parliament and of the Council of 27 June 2007 on roaming on public mobile telephone networks within the Community and amending Directive 2002/21/EC (OJ EU No. L 171, p. 32), the customer may initiate an arbitration procedure before the Federal Network Agency.

j. Where the customer allows a third party to use the ENAiKOON SIM card provided to them, they must inform the third party of the obligations under these Terms and Conditions.

k. The provisions on warranty for defects in clause 9 also apply to SIM cards, in particular in cases where SIM cards are permanently built into ENAiKOON hardware and cannot be replaced.

13. Data Storage and Deletion

ENAiKOON stores the data transmitted and entered by the customer in the course of contract processing (e.g. location data) for the duration of the agreed contract term, unless the customer requests deletion beforehand. One month after termination of the contract, ENAiKOON deletes all existing data.

ENAiKOON points out that all data the customer wishes to continue using should be exported before this time. No separate reminder will be issued by ENAiKOON.

14. Privacy Protection

a. ENAiKOON may process and store data relating to the respective contracts insofar as this is necessary for the execution and handling of the purchase contract and for as long as ENAiKOON is legally obliged to retain such data.

b. ENAiKOON reserves the right to transmit the customer’s personal data to credit agencies, insofar as this is necessary for the purpose of a credit check, provided that the customer has expressly consented to this in the individual case. Apart from this, ENAiKOON will not forward personal customer data to third parties without the customer’s express consent, unless ENAiKOON is legally obliged to disclose the data.

c. ENAiKOON is entitled to process and use its customers’ master data insofar as this is necessary for customer advice, advertising, and market research for its own purposes, and for the demand-oriented design of its services. In doing so, ENAiKOON observes the legitimate interests of its customers. For advertising by e-mail, the following applies in addition: for direct marketing of its own products that are similar to the product purchased by the customer, ENAiKOON may use the e-mail address provided by the customer. The customer may object to any use of his or her data under clause 14.c. at any time. Upon request, ENAiKOON will at any time provide the customer with full and free information about the stored data, insofar as it concerns him or her.

d. Further details on data processing when placing an order via ENAiKOON’s websites can be found in ENAiKOON’s privacy policy.

15. Exclusive Commercial Use of Certain Devices

All devices, with the exception of the ENAiKOON locate-19, are intended exclusively for commercial use. They are registered as so-called B2B devices, which are used solely in environments other than private households (§ 6 para. 3 sentence 2 ElektroG). The customer therefore undertakes neither to use these products for private purposes nor to make them available to third parties for private use, whether for consideration or free of charge. The customer also undertakes not to sell these products to employees or private individuals unless they can prove that the modules are used exclusively for commercial purposes.

If the customer breaches these obligations and is responsible for such breach, he or she is obliged to compensate ENAiKOON for any resulting damage.

16. Disposal of Waste Electrical and Electronic Equipment

a. If the customer is an entrepreneur, they shall assume the obligation to properly dispose of the delivered devices at their own expense in accordance with statutory provisions once their use has ended. In doing so, the customer also releases ENAiKOON from its obligation under § 10 para. 2 ElektroG (manufacturer’s take-back obligation) and from any related claims by third parties. The customer is required to contractually oblige any commercial third parties to whom they pass on the delivered devices to properly dispose of the devices at their own expense in accordance with statutory provisions, particularly those of the ElektroG, once their use has ended, and to impose a corresponding obligation to ensure further transfer in the event of renewed onward supply. Should the customer fail to contractually oblige third parties to assume the disposal obligation and the obligation to further transfer, the customer shall be obliged to take back the delivered devices after their use has ended and to properly dispose of them at their own expense in accordance with statutory provisions.

b. If the customer is a consumer, ENAiKOON hereby informs the customer that such old devices may not be disposed of as unsorted municipal waste. They must be collected separately and disposed of through the local collection and return systems.

17. Amendments to the Terms and Conditions

ENAiKOON shall be entitled to amend these General Terms and Conditions, provided that the customer is notified of such amendments in writing no later than six weeks before they come into effect. The customer may object to the amendment within four weeks of receiving the notification; otherwise, the amendment shall be deemed accepted. ENAiKOON shall explicitly draw attention to this consequence in the notification.

18. Final Provisions

a. Any amendments, supplements or partial or complete termination of the contract must be made in writing, including any amendment or cancellation of this written form requirement.

b. For contracts concluded by ENAiKOON on the basis of these General Terms and Conditions, and for any claims arising therefrom of any kind, the law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

c. The place of performance and the exclusive place of jurisdiction for all disputes arising from contracts subject to these Terms and Conditions shall be Berlin-Charlottenburg, provided the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law. In all other cases, in particular if the customer is a consumer, ENAiKOON or the customer may bring an action before any court having jurisdiction under the statutory provisions.