General
EMnify GmbH, headquartered in Landsteinerstrasse 4, 97074 Würzburg, Germany, registered
at the Commercial Register of the District Court ("Amtsgericht") of Würzburg, HRB 12268
(hereinafter “EMnify”) provides its services (hereinafter “Services”) on the basis of the
following terms of service (hereinafter “Terms”) to the customer (hereinafter “Customer”) as
identified in the relevant Order Form (as described below) and/or through access on the
EMnify Portal (as described below). EMnify Services are only available to business Customers
and not to consumers. EMnify and Customer are hereinafter also referred to as “Party” or
together as “Parties.”
2. Contract Conclusion and Contract Structure
2.1 The contract for EMnify Services (hereinafter “Contract”) is concluded by Customer
placing an order (hereinafter “Order”) with EMnify through an order form (hereinafter
“Order Form”) made available by EMnify in electronic format or, if available, through
means of online contracting, and EMnify having accepted such Order in text form by
e-mail to the mail address of Customer indicated in the Order or, if available, through
means of online contracting. Any offers or indications by EMnify on price, quantity,
delivery time and availability are only binding when accepted by EMnify through
acceptance of the Order, and it being understood that EMnify is not obliged to accept
a Customer Order. Each Customer Order accepted by EMnify, and each activation of a
SIM Card (as defined below), hereunder generate a separate Contract, in the latter case
under the relevant Order.
2.2 EMnify makes available the Order Form to Customer either by e-mail upon request of
Customer or online through the M2M web portal operated by EMnify (hereinafter
“EMnify Portal”), after access to the online functionality has been granted by EMnify
upon request of Customer. Customer may place his Order by filling out the Order Form
and submitting it to EMnify either online via the EMnify Portal (when access has been
granted to Customer), or by sending it per e-mail as attachment, or by sending the
hardcopy through registered mail or courier to EMnify. Alternatively, Order Forms
may be made available by, and submitted to, EMnify through means of online
contracting.
2.3 When placing an Order, the Customer represents that he is not ordering the EMnify
Services as a consumer but as a business and for business purposes, and shall therefore
always state his VAT number, and/or his company registration number, and/or his
company/business details.
2.4 The Contract between EMnify and Customer includes the following documents as an
integral part of the Contract with the following order of precedence in case of
conflicting provisions:
• Order as accepted by EMnify
• These Terms
• Service Description
• Service Level Agreement
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• Tariff and Rate Zone Documentation in its respective current version
• API Specification.
These Terms and the above documents apply exclusively. Any terms and conditions or
procurement terms of Customer are not binding or applicable to EMnify, even if
EMnify does not expressly reject such terms and conditions or procurement terms.
2.5 Any subsequent Orders of Customer are governed by the then current version of these
Terms. Any agreements containing individual terms deviating from these Terms are
subject to our prior written consent.
3. Services provided by EMnify
3.1 General
3.1.1 EMnify provides telecommunications and other Services for the Internet of Things
(hereinafter “IoT”) and in the area of Machine-to-Machine (hereinafter "M2M")
mobile radio communications as detailed in the Contract documents listed in
clause 2.4, and as agreed in the Order accepted by EMnify pursuant to clause 2.1. Other
products and services than those explicitly agreed in the Order between EMnify and
Customer are not covered by the Contract and require a separate agreement between
the Parties.
3.1.2 The Services support the implementation and management of mobile radio networkbased communication between distributed systems (such as vehicles, machines,
electricity meters, etc.) and central control stations (e. g. communication hubs) as well
as remote-controlled operation of devices for purposes of monitoring, measurement,
meter reading and control by the Customer. These include application scenarios in the
field of human-to-machine and machine-to-human communication, e.g. the control of
systems by a service technician with his mobile device.
3.1.3 The Services are provided through (i) a cloud-based software platform (hereinafter
“EMnify Platform”) that enables management and integration of Customer devices and
systems by way of the EMnify API and EMnify Portal, and (ii) the provision of
connectivity for the Customer devices. With respect to connectivity, EMnify supplies
M2M SIM cards ((hereinafter “SIM Cards”) and data transmission to and from the
EMnify Platform on the basis of network services provided by mobile network
operators or mobile service providers. Geographic coverage for the connectivity is
limited to the countries and regions as provided in the Tariff and Rate Zone
Documentation. With respect to the EMnify Platform, the Services are technically
confined to the location of the servers and software that operate the EMnify Platform.
3.1.4 Where required, the Services consist of a configuration phase during which the EMnify
Platform and the EMnify Portal are configured for the usage by the Customer and
receipt of the ongoing Services, and an operation phase during which the ongoing
Services are being provided to and received by Customer. Where a configuration phase
occurs, the resulting configuration of the EMnify Platform and the EMnify Portal
determines the scope of the Services in addition to the Contract documents pursuant
to clause 2.4.
3.1.5 EMnify procures products and services (in particular hardware and software and
telecommunications services) from third parties (hereinafter “Suppliers“) to provide
the Services and is entitled to engage third parties in providing the Services
(hereinafter “Subcontractors“).
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3.1.6 To the extent required for receiving the Services, EMnify herewith grants to Customer,
against payment of the agreed remuneration, and for the term of the Contract, the nonexclusive, non-transferable, non-assignable and not sub-licensable usage right in the
EMnify Platform and the EMnify Portal.
3.2 SIM Cards
3.2.1 Unless agreed otherwise in writing between the Parties, EMnify provides the SIM
Cards required for the use of EMnify Services to Customer. Except for the agreed
delivery of SIM Cards by EMnify to Customer, EMnify does not offer or provide any
hardware to Customer; in particular, EMnify does not provide any end devices. EMnify
is entitled to withdraw from the relevant Contract by written (text form) notice, if SIM
Cards agreed with Customer become unavailable on the market before their estimated
delivery to Customer.
3.2.2 Delivery dates communicated by EMnify to Customer are estimates and not binding,
unless explicitly communicated as binding by EMnify. In the event of any delay on
binding delivery dates, EMnify shall have a grace period of at least three (3) weeks to
remedy the delay. Partial deliveries shall be accepted by Customer.
3.2.3 As the SIM Cards pertaining to the Services are separately ordered and delivered on
demand of the Customer, the SIM Card specifications are determined by the respective
current SIM Card list that is made available by EMnify through the EMnify Portal or
demand of the Customer and that may be updated on a daily basis.
3.2.4 Where Customer request shipping of the SIM Cards, the risk of accidental loss or
deterioration of the SIM Card passes to the Customer at the moment of the dispatch of
the SIM Card to the Customer, but no later than the SIM Cards leaving the premises of
EMnify or its suppliers.
3.2.5 In the event that, without justification, Customer refuses acceptance of the SIM Cards
despite a grace period of fourteen (14) days set by EMnify, or if Customer finally
declares not to accept the SIM Cards, or if Customer declares withdrawal from the
relevant Contract, EMnify may agree to a mutual termination of the relevant Contract
subject to a lump sum payment by Customer of 30 % of the net goods value under the
respective Order as compensation.
3.2.6 SIM Cards can be activated by the Customer himself at any time through the EMnify
Portal after EMnify's receipt of payment in accordance with clauses 6 and 7. For
activation, Customer will receive a confirmation through the EMnify API (if set up
correctly by the Customer) or through the EMnify Portal.
4. Contract Term, Termination
4.1 The Contract term begins upon acceptance of the Order by EMnify pursuant to
clause 2.1 and its duration is dependent on the tariff (hereinafter “Tariff”) chosen by
the Customer from the Tariff and Rate Zone Documentation. Any minimum Contract
term shall be determined in the Contract through the relevant Tariff chosen by the
Customer. After expiry of any minimum Contract term, or in the absence of a minimum
Contract term, the Contract shall continue, or be concluded, as the case may be, for an
indefinite term. The Contract may be terminated by either Party by giving one (1)
month prior written (text form) notice to the end of a calendar month, but no earlier
than to the end of the calendar month in which any minimum Contract term expires.
4.2 Other, additional or extended minimum Contract terms may apply in case of adding or
activating Tariffs pursuant to the specific Tariff conditions as described in the Tariff 
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and Rate Zone Documentation. Tariff changes, adding Services and/or Tariffs by the
Customer during the Contract term can extend or shorten the remaining Contract
term, if agreed in the respective Order pursuant to the procedure foreseen in clause 2.1.
4.3 During any minimum term the ordinary termination is excluded. However, the Parties
may terminate the Contract with immediate effect upon notice in writing to the other
Party, in particular, if the other party commits a material breach of the Contract and
fails to remedy such breach within thirty (30) days of receipt of a written notice giving
full particulars of such material breach and requesting that it be remedied. EMnify may
furthermore terminate the Contract with immediate effect, if Customer is in default
with payment of a significant invoiced amount (i.e. at least two monthly payments or
an amount equal to two average monthly invoices).
4.4 Termination notices shall be given in text form, i.e. by letter, email or fax.
4.5 Services are provided until the last day of the Contract term and the Customer is
obliged to pay all fees and charges incurred until that time. Upon termination, or
expiry, of the Contract, Customer shall be obliged to cease usage of the Services.
Customer shall block access to any online tools, in particular the EMnify Platform and
the EMnify Portal, it being understood that EMnify shall also be entitled to switch off
any online access.
5. Use of the Services by Customer and Customer Obligations
5.1 General Principles
5.1.1 Customer shall use the Services solely in accordance with the provisions of the Contract
and for lawful purposes and shall not give unlawful directions to EMnify or directions
that would cause EMnify to violate any legal provisions. In particular, Customer shall
not use or attempt to use, or allow or tolerate to use the Services in connection with
any action that is prohibited by any applicable export control and economic sanction
regulations, including those of the USA, the UK, and the EU/EEA. Customer shall
notify EMnify in writing (text form) immediately upon becoming aware of or
suspecting such activity in the course its own services. Furthermore, Customer shall
not use the Services or features of the Services (or SIM Cards) in a manner that has not
been agreed in the Contract. Services and features, such as Short Message Service
(hereinafter: "SMS") to any telephone number, voice communication to any telephone
number as well as the forwarding of voice calls, use as voicemail service or the use of
value-added services can only be used if explicitly agreed in the Contract. In the event
that EMnify reasonably determines that any provision of this clause has been or may
be violated, Customer will cooperate fully with EMnify’s investigation to examine and
resolve the issue. Furthermore, Customer shall indemnify EMnify in full and on
demand for any claims, costs, demands, expenses or other liabilities that EMnify may
incur whether actual or contingent, as a result of any use of the Services in violation of
the Contract.
5.1.2 Customer is responsible to use and maintain suitable, ready for use and compatible
end devices and suitable SIM Cards to receive the Services. As data storage is not
provided by EMnify, unless explicitly agreed otherwise, and irrespective of whether
such agreement exists, Customer is also responsible for regularly making back-up
copies of his data that is processed or used in conjunction with the Services.
5.1.3 To the extent that Customer concludes contracts with third parties (including general
terms and conditions with end customers) that impair or hinder the provisioning of
the Services by EMnify, EMnify shall be released from fulfilling its contractual
obligations.
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5.1.4 Where Customer resells the EMnify Services to third parties, in particular to end
customers, and without prejudice to any claim that Customer may have against EMnify
for EMnify’s failure to provide the Services as agreed, any claim or demand arising
from or related to a third party customer or other user of the Services resold by
Customer shall be a matter between Customer and such third party. The Customer
shall indemnify EMnify in full and on demand for any claims, costs, demands, expenses
or other liabilities that EMnify may incur whether actual or contingent as a result of
any claim or demand brought or alleged by such third party customer or user, or by
any other third party as a result of the use of the third party customer or user of the
Services. Customer shall be responsible for the actions and omissions of third party
customers or users the same way as for its own actions and omissions.
5.1.5 Customer shall provide EMnify with all information, data, documents and material
that are required or that Customer considers required or useful for the rendering of the
Services by EMnify. EMnify shall not be obliged to review material, data, documents
and information provided by Customer or third parties (except Subcontractors and
Suppliers of EMnify) for inconsistencies, mistakes or omissions.
5.1.6 Customer shall comply with all obligations, as set forth in the Contract, in a complete,
orderly and timely manner, and at Customer own cost. Should Customer fail to fulfill
its obligations in a complete, orderly and timely manner, such failure shall release
EMnify, for the duration of the failure, from such performance hereunder that requires
compliance by Customer with his obligations, or where Customer’s failure would result
in unreasonable additional efforts for EMnify. Service Levels shall be suspended for
the duration of the failure or default plus a reasonable ramp-up period for restoration.
5.2 SIM Cards
5.2.1 SIM Cards provided by EMnify may only be used in conjunction with the EMnify
Services and not otherwise. SIM Cards shall only be used by the Customer in a physical
manner and shall be activated by Customer through the EMnify Portal, the EMnify API
or EMnify personnel only.
5.2.2 Customer is obliged
• to notify EMnify without undue delay of any change of name, change of
address, changes of headquarters, email address and other inputs significant
for the Contract;
• to protect the SIM Card from abuse and shall inform EMnify of any abuse by
giving full particulars of the impacted SIM Card(s) immediately after
obtaining knowledge thereof. Such information can be provided by phone
once recorded in EMnify’s service-ticketing-system, or by sending an email
to the service hotline. In the event of loss of control over the SIM Card
attributable to Customer, Customer remains obliged to pay the fees arising
from use of the SIM Card by third parties until suspension of the SIM Card
by the Customer using the EMnify Portal or by explicitly requesting such
suspension from EMnify in writing.
• to refrain from accessing the SIM Card file system, from using the SIM Cards
for SMS SIM Boxing, from generating any (signalling) traffic with nonactivated or non-allocated SIM cards, and from activities with similar effect
(Phantom SIM Cards), 
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and to tolerate permanent physical deactivation of the affected SIM Cards by EMnify
without liability or replacement obligation of EMnify in the event of SIM Card usage in
violation of the provisions in this Contract.
5.3 EMnify API and the EMnify Portal
5.3.1 The Customer is responsible for the technical set-up and interoperability of his systems
with EMnify Services, in particular the EMnify API and EMnify Portal. The
implementation shall be in accordance with the API specifications and policies (in
particular 'EMnify RestAPI specification') provided by EMnify.
5.3.2 The Customer is responsible for the connectivity of his systems to the EMnify Platform
through a suitable Internet access that enables him to access the EMnify Platform at
the location of the servers and software that operate the EMnify Platform.
5.3.3 The Customer is responsible for the security of his hardware, and the security and
confidentiality of his data, as well as the access data, which he uses for the access to the
EMnify Portal.
5.4 EMnify SMS Services
5.4.1 The Customer may choose to activate the EMnify SMS Service via his access to the
EMnify Portal only.
5.4.2 The Customer may not use or allow or tolerate third parties’ use of SMS outbound
Services for unsolicited communications, or any illegal, immoral or improper purpose
or in any manner which violates applicable laws or regulatory requirements of the
relevant jurisdiction, and Customer may not re-sell the SMS Services. In the event that
either Party detects such SMS traffic, such Party will notify the other and suspend the
endpoint, Service, or relevant (end) customer account immediately.
6. Prices and Invoicing
6.1 All prices are net of freight, packaging and ancillary costs, such as customs and import
duties, and applicable statutory Value Added Tax ("VAT") in the amount as applicable
at the date of invoicing.
6.2 For the provision of SIM Cards, EMnify issues the invoice upon acceptance of the
Customer Order pursuant to clause 2.1.
6.3 Agreed monthly fees or minimum fees are invoiced monthly in advance.
6.4 Variable charges, in particular agreed usage fees will normally be invoiced within three
(3) working days from the end of the previous month. EMnify reserves the right to
invoice usage fees for such month also in later invoices, if the fees have not been
invoiced in the following month.
6.5 All invoiced amounts are payable immediately.
6.6 Invoices are provided to the Customer electronically. The Customer also receives
access to itemized usage statements through the EMnify Portal; this data is available
to Customer for eighty (80) days after dispatch of the invoice.
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7. Payment, Security, Disputes
7.1 EMnify's Services are generally provided on the basis of advance payments for which
the Customers are invoiced on a regular basis and for which a true-up is made by
EMnify on a monthly basis pursuant to the invoices issued in accordance with clause 6.
Invoices for advance payments are payable immediately upon receipt and without
deduction.
7.1.1 Payments via wire transfer have to be made in Euro to the bank account named in the
invoice. The Customer may also authorize EMnify to regularly charge advance
payments by direct debit.
7.1.2 Payments may also be made on a regular basis via EMnify's credit card facility as
indicated on the EMnify Portal. The Customer is responsible to ensure that the credit
card data stored in EMnify's credit card facility is up to date. Where EMnify is unable
to withdraw funds from the Customer’s credit card EMnify will notify Customer.
7.1.3 EMnify may withhold the Services until payment of the invoiced advance amount is
received in full. Any applicable bank charges shall be borne by the Customer.
7.2 EMnify may agree to the Services being paid by Customer without advance payments
pursuant to clause 7.1. When agreeing to such post-paid Service providing, the
provisions in clauses 7.1.1 to 7.1.3 apply to the payment of the invoices issued pursuant
to clause 6 accordingly. Furthermore, EMnify can request, in its sole and reasonable
discretion, that Customer provides adequate security in order to secure due and future
payments using one or more of the following methods:
7.2.1 Credit Limit
EMnify may provide Customer with an initial Credit Limit amount (hereinafter:
"Credit Limit") and will notify Customer of this in writing.
EMnify may change the Credit Limit in its reasonable discretion by giving twenty-four
(24) hours prior written (text form) notice. EMnify will send this notice by e-mail
notification.
EMnify may suspend the Services without prior notice if the Credit Limit is exhausted,
meaning that the sum of (i) the total invoiced amounts, which remain unpaid, plus (ii)
the unbilled but accrued usage across all Contracts, has exceeded the then current
Credit Limit.
7.2.2 Bank Guarantee or Deposit
Instead of, or in addition to a Credit Limit, EMnify may require a deposit or a bank
guarantee from Customer, in an amount and form that is satisfactory to EMnify.
Failure to provide the deposit or bank guarantee as requested shall entitle EMnify to
suspend the Services.
7.3 In the event of payment default, EMnify is entitled to charge default interest in the
amount of nine percent (9 %) per annum above the applicable base interest rate of the
European Central Bank from the due date for payment until payment is made in full,
whether before or after judgment. EMnify’s right to claim a higher damage caused by
the default remains unaffected.
7.4 Objections against the invoiced amounts shall be made in good faith to EMnify by
email (mailto: finance@emnify.com) within thirty (30) calendar days from receipt of 
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the invoice in writing (text form) and in a substantiated manner, if the event giving rise
to the objection has become known within this period. Upon expiry of one (1) year from
receipt of the invoice, objections shall be excluded. Objections only entitle the
Customer to withhold payment only to the extent the invoiced amount has been
disputed as required above.
8. Suspension
8.1 Without prejudice to other rights EMnify may have under this Contract or otherwise,
EMnify is entitled to wholly or partly suspend the Services (hereinafter ”Suspension”),
including the physical deactivation of a SIM Card in case of, but not limited to, the
following events, without liability towards the Customer:
• The Customer is in default with payments, a Credit Limit has been exhausted,
or Customer has violated other provisions relating to payment (clause 7);
• EMnify monitors a substantial increase in volumes and use of the Service,
and consequently the Customer's liability towards EMnify is in EMnify's
reasonable opinion justifying the assumption that the Customer will not pay
the applicable Tariffs;
• An order for suspension of the Services by a competent court or regulatory
authority;
• Any threat to the technical facilities and/or network of EMnify (including, in
particular, the EMnify Platform), or one or more of its network service
providers, that is, with high probability and/or in EMnify's reasonable
opinion, caused by the Customer's use of the Service;
• EMnify obtains secured information that the SIM Card usage caused or
causes violations of applicable laws or violates the provisions in clauses 5.2
or 5.4.2;
• Customer fails to provide EMnify with a valid business address and email
address and any other essential information reasonably requested by EMnify
in accordance with the Contract;
• Customer continues to violate the provisions of the Contract, despite a single
written (text form) request sent to him by letter, email or courier, to remedy
the violation.
8.2 The Customer remains obliged to pay fixed and any usage-based charges, in particular
monthly fees, minimum fees, etc. during any Service Suspension for causes
attributable to Customer.
9. Warranty
9.1 General
9.1.1 EMnify’s obligations to remedy Service defects regulated in the following provisions.
EMnify shall only be liable for damages (“Schadenersatz”) and efforts
(“Aufwendungsersatz”) due to Service defects or due to any performance which is not
in compliance with the contractually agreed specifications within the limitations of
clause 10 hereof. Subject to the following provisions, any further rights and claims of
Client due to Service defects are excluded.
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9.1.2 EMnify warrants in accordance with that the Services essentially comply with the
specifications agreed in the Contract. EMnify does not warrant that the Services are fit
for Customer’s intended purposes. Customer shall notify EMnify in writing (text form)
of any defects without undue delay.
9.1.3 In the event of Service defects, EMnify provides a warranty by way of remediation
(“Nacherfüllung”) in that EMnify, in its discretion, either provides to Customer a new
or error free service (including replacement of defective components) or rectifies the
defect. Defect rectification may also consist of showing to, or providing Customer with
reasonable possibilities that avoid the effects of the defect.
9.1.4 Customer claims shall be excluded in the event of an insignificant deviation of the
Services from the agreed specifications or in the event of insignificant impairments of
fitness for the contractually agreed purpose of the Services. Any specifications and
product descriptions shall not be construed as guarantee, unless separately and
explicitly agreed in writing and signed by the authorized representatives of the Parties.
9.1.5 Customer may only claim further statutory rights or claim damages and/or efforts
within the limitations of clause 10, (i) if after unsuccessful expiry of a first period to
rectify the defect EMnify has failed with a second rectification effort within a
reasonable period of time (typically four (4) weeks), or (ii) after EMnify has failed with
a reasonable number of remedial, replacement or workaround efforts. Customer may
then terminate the Contract for cause pursuant to clause 4.3, provided that the period
of time for the second rectification effort has been at least thirty (30) calendar days.
Any rights of rescission (“Rücktritt”, “Wandlung”) of Customer are replaced by this
termination right. Any self-rectification (“Selbstvornahme”) by Customer is excluded.
Where the Service Level Agreement provides for service credits in the event of defects,
any rights to reduce the remuneration (“Minderung”) are then exclusively and finally
governed the Service Level Agreement.
9.1.6 Modifications or extensions of the Services and modifications of the Customer systems
or end devices, as well as interferences with the EMnify Platform, carried out by
Customer, or third parties commissioned or tolerated by, Customer cancel all warranty
obligations of EMnify, unless Customer can establish that the modification or
extension has not caused the defect in the Services. EMnify is not responsible for
defects of the Services that are caused by improper handling or usage of the EMnify
API or EMnify Platform, by the use of improper equipment by Customer or by failures
in the obligations of Customer.
9.1.7 If EMnify incurs effort in the defect detection or rectification for which EMnify is not
responsible due to the foregoing provisions, then EMnify may charge this additional
effort to Customer pursuant to the then current hourly, or daily rates, of EMnify
personnel on a time & material basis.
9.2 SIM Cards
9.2.1 All SIM Cards provided by EMnify are manufactured by third parties. EMnify obtains
the technical specifications of the SIM Card from these manufacturers. As is custom in
trade, these technical specifications are to be considered as approximate and represent
no warranted characteristics.
9.2.2 The Customer shall examine the SIM Cards upon their receipt and before installing the
SIM cards in any devices. Complaints or objections in regards to quantity or type of
SIM Cards, as well as with regard to externally visible defects shall be notified to
EMnify in writing (text form) within ten (10) days of receipt of the SIM cards.
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9.2.3 Where Customer has moved a SIM Card to another location than the establishment of
the Customer to which it was originally delivered, then Customer shall bear the
additional costs caused in conjunction with any warranty claims. If SIM Cards are
returned without proper packaging, the Customer shall bear the risk of damage.
10. Liability
10.1 Nothing in this agreement shall limit or exclude the liability of either Party:
(a) for death or personal injury resulting from its negligence or that of its
Employees or subcontractors;
(b) for fraud or fraudulent misrepresentation; and
(c) any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, neither Party shall be liable to the other Party, whether in
contract, tort (including negligence) or restitution, or for breach of statutory duty or
misrepresentation or otherwise, for any loss of profits, business, contracts, anticipated
savings or revenue, loss of or damage to goodwill, loss or corruption of data and/or any
business special, indirect or consequential, losses or damage (whether such losses or
damage were foreseen, foreseeable, known or otherwise).
10.3 Subject to clauses 10.1 and 10.2, the total liability of EMnify in relation to any liability
arising under or in connection with this agreement, whether arising in contract, tort
(including negligence) or restitution, or for breach of statutory duty or
misrepresentation, or otherwise, shall be limited (i) per calendar year to an amount
equal to the amount of [50%] of the remuneration pursuant to the affected Order for
that calendar year, and (ii) per each damage causing event to an amount of
[€5,000.00].
10.4 Where EMnify is providing a publicly available telecommunications service, EMnify’s
liability may also be limited in accordance with applicable statutory provisions in the
relevant jurisdiction.
10.5 All claims for damages and efforts become time-barred within one year from the
statutory commencement of the limitation period.
11. Data Protection
11.1 Within their respective sphere of responsibility, the Parties ensure at their respective
own cost the compliance with the applicable data protection laws when processing
personal data as controller or processor, each within the meaning of applicable data
protection laws.
11.2 Where the Services qualify as electronic communications services or
telecommunications services, EMnify is acting as a data controller and may need to
process personal data and other data covered by applicable data protection laws
(including, but not limited to, Customer contract data, traffic data and billing data),
and (ii) to disclose it to third parties for the proper fulfilment of its contractual and
statutory obligations or as permitted by law. In handling such data, EMnify will act as
permitted by law and in compliance with its privacy information available through the
EMnify Portal. The same applies to the processing of personal data of Customer
employees (such as name and contact details) by EMnify required for proper fulfilment
of its contractual and statutory obligations, or Customer’s proper receipt of the
Services. In particular, EMnify is entitled to transfer the necessary accounting and 
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receivables data, e. g. to a debt collection company in the case of judicial or extrajudicial
proceedings aiming for the recovery of debt.
11.3 Where the Services include the processing of personal data by EMnify as Customer’s
data processor (e.g. through the management of Customer devices or devices of
Customer’s end customers when such management includes access to, or handling of,
personal data), Customer is the data controller and EMnify shall process such personal
data only in compliance with the written (text form) instructions of Customer and as
stipulated in a separate data processing agreement to be concluded between the Parties
fur such purpose. Irrespective of provisions in such data processing agreement to the
contrary, where any Customer instructions on data processing or the data processing
agreement have an impact on the scope of Services agreed in any Contract, EMnify
shall be entitled to appropriate additional remuneration to be agreed between the
Parties; should the Parties not agree on such remuneration, the then current hourly or
daily rates of EMnify personnel and costs shall apply on a time & material basis.
12. Changes to the Terms, Services and Prices
12.1 Any changes to the EMnify Tariffs, the Order Form, as well as the Service Description
shall be communicated by EMnify to Customer in advance in writing (text form) or
through the EMnify Portal.
12.2 Where changes are made by EMnify during the term of the Contract and where such
changes are not to the advantage of Customer, EMnify shall notify Customer of such
changes with reasonable prior notice in accordance with clause 12.1 above. Customer
then has the right to terminate the affected Contract by written (text form) notice
within a period indicated in the notice by EMnify. EMnify shall inform the Customer
about this termination right in the change notice and the consequence that the change
becomes valid and agreed, if the termination is not exercised.
13. Miscellaneous Provisions
13.1 Assignment
Notwithstanding any subcontracting by the Parties, neither Party may charge, assign or
otherwise dispose of the agreement or any part thereof without prior written (text form)
consent of the other Party. Such consent shall not be unreasonably delayed or withheld.
13.2 Severability
In the event that any provision of the Contract shall be invalid, illegal, or unenforceable, the
validity of the remaining provisions of the Contract shall not be affected. The invalid, illegal or
unenforceable provision shall be replaced by a provision that comes as close as possible to
fulfilling the economic purpose of the invalid or unenforceable provision. The same shall apply
in the event that the Parties subsequently discover that the Contract contains an omission.
13.3 Confidentiality
13.3.1 Each Party shall keep confidential and protect from unauthorized access all
Confidential Information (as defined below) of the other Party. In particular, the Party
receiving the Confidential Information shall only disclose the Confidential Information
to its own employees and employees of its affiliated companies, to Subcontractors,
Suppliers and advisors on a need-to-know basis for the proper fulfillment of the
Contract, provided that these persons have agreed to the same confidentiality and nondisclosure obligations or are subject to statutory confidentiality obligations. The
receiving Party shall treat Confidential Information with the same level of diligence 
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and care that it applies to its own confidential information, and in any event with no
less skill and care than that of a diligent businessperson. No Party shall make any
property rights registration with respect to Confidential Information of the other Party.
13.3.2 For the purposes of the Contract “Confidential Information“ shall mean a) status,
content and result of the negotiations between the Parties relating to Contract, b) all
information of any kind (irrespective of whether it is named or indicated as being
confidential, a trade or business secret), which aa) was or is made available to the
receiving Party by the disclosing Party or by third parties commissioned by the
disclosing Party in the context of the implementation of the Contract – be it in oral,
written, electronic or other format, or bb) comes to the knowledge of the receiving
Party in the course of the implementation of the Contract, c) the intellectual property
rights of each Party and d) all reports, analyses, technical operational documentation,
compilations, memos, summaries, notes, excerpts or other materials in oral, written,
electronic or other format that entail information within the meaning of lit. a) through
c), or that are based on such information and which aa) were or are made available to
the receiving Party by the disclosing Party or by third parties commissioned by the
disclosing Party in the context of the implementation of the Contract, or bb) the
receiving Party has obtained or will obtain, has created or will create, in the course of
the implementation of the Contract.
13.3.3 The foregoing provisions do not limit the rights of the Parties to the extent that (a)
usage or disclosure of Information is required for the fulfillment of obligations or the
exercise of rights under the Contract, or (b) usage or disclosure of Confidential
Information is required by law or due to court or administrative order and the Party
obliged thereunder has informed the other Party thereof in writing without undue
delay, or (c) the affected Party, has given its prior written consent to a disclosure of its
Information. Further, the foregoing provisions do not limit the disclosure of
Confidential Information, if and to the extent that
• the receiving Party can establish, that the Confidential Information (i) was
known to it prior to the disclosure or knowledge without use of the Confidential
Information, or (ii) has been developed by it independently from the
Confidential Information,
• the Confidential Information, at the time of disclosure or knowledge by the
receiving Party, is already or becomes publicly known or accessible without
violation of the Contract or other confidentiality obligations of the receiving
Party,
• the receiving Party has obtained the Confidential Information from a third
party without violation of a confidentiality obligation towards the disclosing
Party or of another confidentiality obligation, or
• the receiving Party discloses the Confidential Information to its auditors or
legal advisers or other persons that are bound to confidentiality obligations due
to their professional rules.
13.3.4 The foregoing confidentiality obligations apply during the Contract term, and for a
period of three (3) years after the Contract’s termination.
13.4 Intellectual Property, Trademarks and Logos
13.4.1 The Parties agree that EMnify exclusively owns and reserves all right, title and interest
in and to the EMnify Services, EMnify's properties, software, other inventions whether 
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or not patentable, copyrightable, protectable as trade secrets, or otherwise subject to
intellectual property rights, and EMnify's confidential information. The Parties further
agree that Customer exclusively owns and reserves all right, title and interest in and to
the Customer data, Customer applications and Customer's confidential information.
13.4.2 All title (intellectual property rights) in work products (for clarity including any
configuration of the Services, the EMnify Platform and the EMnify Portal and the other
software used by EMnify), in particular all usage and exploitation rights under
copyright law („Urheberrecht“), rights in inventions and technical property rights shall
vest in relation to Customer exclusively in EMnify, no matter whether and to what
extent the work products are based on requirements or contributions of Customer.
13.4.3 Except for the limited usage rights explicitly granted in the Contract all intellectual
property rights as well as all other rights, interest and claims in relation to the Services,
the EMnify Platform and the EMnify Portal and the other software used by EMnify in
this context shall remain with EMnify.
13.4.4 The use of EMnify trademarks and logos by Customer and the use of Customer's
trademarks and logos, including those of their respective affiliated companies, requires
prior written (text form) consent of the affected Party by way of a separate agreement
between the Parties.
13.5 Place of Fulfilment, Choice of Law and Venue
Place of performance and payment is Würzburg. Place of venue for all disputes arising from
or out of the Contract shall be Würzburg. The Contract shall exclusively be governed by the
laws of England and Wales. The application of uniform sales law, in particular the application
of the Convention of the United Nations on Contracts for the International Sale of Goods
(CISG) is expressly excluded.
Version 1. August 2018