Special conditions for use of dguard®
§ 1 General
(1)These Special Conditions for the purchase and use of Digades dguard® (hereinafter “Conditions”) are valid for all contracts concluded via the Digades online shop by <email> for the purchase of the Digades dguard® system between
Digades GmbH Digitales und analoges Schaltungsdesign
Äußere Weberstraße 20, 02763 Zittau
CEO: Lutz Berger, Certified Engineer
Court Office Dresden HRB 2775
Phone +49 3583 5775-0
Fax + 49 3583 5775-444
and the customer. On purchase from other sellers, conditions apply in the case of their involvement by the seller, subject to separate agreements between the respective seller and customer in the relationship between the respective seller and the customer; they also apply in this case in respect of the use of services exclusively between Digades and the customer. The version of the conditions current at the time of the conclusion of the contract shall apply. Digades does not accept differing conditions of the customer. This also applies even if Digades does not expressly object to their use.
(2) Digades can subsequently change the conditions if this is necessary and the customer is in good faith not disadvantaged due to the change. The need may arise, for example, due to a change in the legal framework for the provision of emergency services or for telecommunications services, due to to a change in the market conditions for these services which Digades in turn procures on this market, or due to the implementation of additional functions in the Digades dguard® product. The changes shall be effective from a date specified in the change, at the earliest, however, when Digades places the amended conditions on the dguard® customer portal and notifies the customer thereof by sending an email to the address entered in the dguard® customer portal.
§ 2 Product characteristics Digades dguard®
(1) System components
Digades is a supplier of hardware and software in the area of wireless communication solutions. Digades makes available to the customer, according to the provision of these conditions, under the name Digades dguard® an automatic emergency call and anti-theft alarm system for the retrofitting of single-track motorbikes for the purpose of operating on public roads in Germany and other countries as listed in the attached appendix 1. The use on multiple-track motor vehicles (in particular trikes, quads or motorbikes with a sidecar) is excluded. Digades dguard® comprises hardware components, an app for smartphones and an internet browser for system configuration and indication of the anti-theft alarm and time-limited access to mobile communication (§ 4), which is required in particular for the connection set-up with the emergency PSAP in terms of the dguard® eCall app. The hardware components consist of a dguard® eCall module, a dguard® eCall sensor and a dguard® eCall button.
Digades dguard® recognises typical accident situations via the dguard®eCall sensor and the dguard® eCall module sensor data and in the instance of detection of an accident situation and of service availability (§ 4) it automatically sends a mobile emergency call to the responsible PSAP. The emergency service information ("emergency call information”) is transferred to the PSAP in order to identify and locate the vehicle and to provide help. In the case of the detection of theft, Digades dguard® sends a theft warning under the same preconditions via a mobile radio communication to the dguard® eCall app which has been installed and configured by the customer.
The emergency call information consists of the data which, according to the regulation (EU) 2015/758 of the European Parliament and the Council of 29 April 2015, is to be transferred to the PSAP from the on-board eCall systems in order to ensure compatibility and interoperability with a future, continuous and harmonised, EU-wide eCall service within the meaning of the regulation of the delegates (EU) No. 305/2013 of the Commission of 26 November 2012 (”EU-wide eCall service”).
At the time of printing these conditions the EU-wide eCall service is not certain, as the deadline for the implementation of the necessary infrastructure measures by EU member states is not until 1 October 2017. Until the actual availability of the EU-wide eCall service, the emergency call information will be set down as an automated message in German, which in particular transmits the coordinates of the location at the beginning of the emergency connection. If the SIM card in the dguard®eCall module is connected to the mobile network of another country in appendix 1 at the time of the emergency call, the message will be in English; if and insofar as the language of the relevant country is implemented in the dguard® eCall module at the time the emergency message is sent out, the message will be in this language.
The emergency call can also be manually activated using the dguard® eCall button.
(3) System requirements
The customer acknowledges that the use and proper functionality of Digades dguard® presupposes a proper installation and proper operation of the installation and operating instructions supplied with the purchase of the product. Both the installation instructions and the usage instructions are available for download at www.dguard.com/Downloads.
(4) Limits of the system
The setting off of an emergency call after an accident or an anti-theft alarm can in individual cases fail due to influences beyond the control of Digades. Such influences are in particular:
a) limited integrity and vitality of the hardware components
The hardware components are constructively designed for the purpose of recognising accidents. In the context of this design not every conceivable violent impact can be prevented by constructive measures. The hardware components should be installed in a protected position on the vehicle. In cases of extreme accident situations damage to the hardware components may occur and possible functional impairments of the system may result.
The power supply of the device is, in the case of a tearing away from the vehicle's power supply (see installation instructions), only ensured via a fixed battery which is set up for a single use. The life expectancy of an unused battery is ten years. After a battery-supported emergency call (e.g. if the cable harness on the dguard® module is torn away in an accident or another poor connection to the on-board power supply) as well as after the life expectancy of the battery, the customer is obliged to check the battery with dguard® customer service and, if necessary, have the battery changed.
b) Unusual accident or theft situation
The system software infers the presence of an accident or theft situation (hereafter: “situation") from a set combination of data delivered to the system sensors. This determination results from a consistency review, which is necessary for the reduction of false alarms (e.g. if the bike falls over), but it also creates a conflict with the fullest possible detection of situations. In the presence of atypical situations in which the values of the sensors give a different result than that of an accident or theft, it is possible that in the case of an accident no emergency call or anti-theft alarm is triggered. Such atypical situations may arise if
- the motorbike comes to a stop vertically after an accident, perhaps because it is trapped between trees or wedged between other vehicles (this cannot reliably be detected as different from an emergency braking situation),
- the motorbike at a standstill is hit head-on by another vehicle (this cannot reliably be detected as different from a simple falling over of the bike) or
- the motorbike is ridden in a way not generally used.
c) limited availability of adequate specific location data
The system generates the necessary location coordinates for the emergency call from values which are transmitted from the Global Positioning System (GPS). If GPS should fail, for instance, the GPS operator changes the accuracy of the location on a no longer sufficient level or it cannot connect to a sufficient number of GPS satellites at the time of the accident (for example due to failures or because area shadings), it may be that the accident site is not determined and an emergency call is not triggered. Point d) applies respectively.
d) limited network availability
For establishing communication with the PSAP and the dguard® eCall app, the system uses the public network of a mobile phone operator connected to Digades, or when abroad an available mobile network via roaming. If a connection to the mobile network cannot be made, an emergency call cannot be triggered. § 4 Para. 2 governs and elucidates on the particulars.
e) Use of foreign mobile networks
The system uses the EU-wide emergency number 112 when an emergency call is triggered. Close to national borders it is possible that the SIM card in the dguard® eCall module does not connect to the network of the country in which the dguard® eCall module is located for technical reasons, but connects to the network of a neighbouring country via roaming. In this case the PSAP in the neighbouring country will be contacted. For as long as the emergency services are not sufficiently harmonised across the EU for eCall, it cannot be expected that the emergency call to a PSAP of a neighbouring county will send the emergency services to the location of the accident in a timely manner an/or that the emergency call will be passed on to the relevant PSAP for the location of the accident. Even if re-routing takes place, this can result in delays in the arrival of the emergency services.
The entry of anti-theft warnings on the dguard® app requires an active data connection on the smartphone being used, which is already connected to data roaming without the relevant contract contents and relevant configuration of the smartphone being required; the same applies for the text message connection of the smartphone on the foreign mobile network in the case of the customer configuring the receiver so that the anti-theft warning is sent by text message.
f) limited legal regulation of the processing of automated emergency calls
It is beyond the influence and control range of Digades as to how national PSAPs process the automated emergency calls. In the interests of reliable location information, the operations of PSAPs in EU member states traditionally require the use of permanently installed emergency phones and/or the existence of people in the area who have independent use of the public communications infrastructure (particularly mobile radio). Not until the complete fulfilment of the obligations of the EU member states of (EU) regulation No. 305/2013 of the delegates of the Commission of the 26 November 2012 will the processing of automated emergency calls by eCall systems be ensured. Until this time, the work processes of the PSAPs of individual member states are subject to different content and depths of regulation, and, in the absence of specific practices, they cannot be taken into account through the work process of the system. The work process of the system according to the additional declaration of § 2 Para. 2 Sub-para. 3 sentence 2 is based on § 4 Para. 8 sentence 5 point 2 of the German Regulation governing emergency connections dated 6 March 2009 (most recently amended via article 1 of the law of 26 November 2012), however, with the proviso that the setting up of the emergency connection is not carried out on a mobile telephone, but the SIM card in the permanently fixed dguard® eCall module is used instead. A comparable legal and or instructional location cannot be assumed for other EU or EEA member states. This applies in the countries listed in appendix 2.
§ 3 dguard® customer portal
(1) The presentation of the offer in the Digades online shop is non-binding and without obligation.
(2) For an order at www.shop.digades.de the ordering process consists of a total of three steps. In the first step, the customer selects the desired goods. In the second step, they enter their data. In the third step, the customer has the opportunity to check all of the information entered (e.g. name, address, payment method) once more and to correct any errors before they confirm their order by clicking the button “Liable to pay”. With their order the customer declares a binding offer of a contract.
(3) Digades confirms receipt of the customer's order immediately. The receipt confirmation does not yet represent a binding acceptance of the order. Digades has the right to accept as binding the offer of a contract within the order by email, fax, phone, post or delivery of the goods ordered within two days of the order being placed. With this acceptance, a contract between Digades and the customer comes into force.
(4) Use of thedguard®servicesrequires the setting up of a customer account and registration of the purchased dguard®eCall modulein the dguard® customer portal as well as the activation of the SIM card contained in the dguard® eCall module purchased by the customer.
§ 4 Capability, availability and costs of services
(1) dguard® services
In order for the customer to be able to access the necessary mobile connection by Digades dguard®, Digades makes available a mobile connection for the dguard® eCall module for a duration of two years. The duration of the service contract begins on the day the SIM card in the dguard® eCall module is activated by the customer on thedguard® customer portal.
If the service contract is not terminated three months prior to the end of this period at the latest, it is extended for another twelve months. A termination by Digades with effect before 31 December 2020 is excluded.
A new conclusion of a service contract by the customer (or in the case of subparagraph 4 by a third party), can be carried out via the dguard® customer portal. A renewed termination of the service contract is only possible at the latest twenty one months after the termination by the customer has come into effect.
The transfer of a service contract to a third party by the customer is permitted without the consent of Digades provided that the client explains to the third party in full the Digades dguard® system that was purchased by them and for which the service contract was concluded, and the third party undertakes a transfer of registration of the Digades dguard® system to their name in the dguard® customer portal.
(2) Availability of services
Digades dguard® is based on GPS-based data reception and a radio-controlled data transmission via the SIM card built into the product. Digades has no influence over the availability and quality of the mobile network as provided by the network provider and the GPS network and cannot guarantee a thorough and exact transmission of vehicle data for the purposes of recognising an accident or the transmission of an emergency call to the PSAPs.
Digades dguard® is limited spatially by the sending and receiving areas of the network provider's radio stations and can in particular be negatively affect by atmospheric conditions, topographical circumstances, the position of the vehicle as well as obstacles (bridges, tunnels, buildings). In addition, the transmission of the emergency call requires the functionality and availability of the mobile network.
Disruptions to Digades dguard® can also occur due to force majeur as well as to technical and other reasons such as maintenance and repair works on the network provider's facilities. Disruptions can also occur due to temporary bandwidth issues due to peak loads or disruptions in the telecommunications facilities of third parties.
Digades implements all reasonable measures to remove such disruptions or work around them.
(3) Costs of services
The dguard® services are free for customers during the first 24 months (”free period”) of the service contract; this applies only for the first conclusion of a service contract for a specific Digades dguard® system. After the end of the free period, the charges that were published at the time of the conclusion of the respective service contract at the Digades online shop shall apply.
§ 5 Use of services
The customer may not use Digades dguard® for illegal purposes. The customer is advised of the penalty for the intentional or wilful misuse of emergency calls (see, for example, § 145 Para. 1 No. 1 of the German StGB). The customer is obliged to indemnify Digades from all costs associated with the misuse of an emergency call. The customer is not responsible for the accidental triggering of emergency calls by Digades dguard®.
The SIM card which is built into the product is to be used only for the intended Digades dguard® services.
§ 6 Right of revocation
(1) If you are the user (i.e. a natural person who submits an order to the effect that it can be attributed to neither commercial nor independent activity), in accordance with the legal conditions, you have the right to revocation.
(2) Should you as a user exercise your right to revocation according to Para. 1, you must bear the standard costs when returning the product.
(3) Otherwise, the rules governing the right of revocation shall apply which are set out in the following in detail
Right of revocation
You have the right to revoke this contract within fourteen days without giving a reason.
The term of revocation is fourteen days after the day on which you or a third party named by you who is not the carrier takes and/or took possession of the goods.
In order to exercise your right of revocation, you must tell us
Digades GmbH Digitales und analoges Schaltungsdesign
Äußere Weberstraße 20, 02763 Zittau
Phone +49 3583 5775-0, Fax + 49 3583 5775-444
by means of an explicit statement (e.g. with a posted letter, fax or email) about your decision to terminate this contract. You can use the attached termination form for this, but this is not obligatory. You can use the template termination form or another clear statement on our website shop.digades.de, which you fill out electronically and submit to us. If you make use of this method, we will send you confirmation immediately (e.g. by email) of the receipt of said termination.
In order to ensure the termination deadline is observed, it is sufficient for you to send notification of the exercising of the right of revocation before the end of the revocation period.
Consequences of termination
If you terminate this contract, we have a maximum of fourteen days from the day on which the notification of termination of this contract is received by us within which to return to you all payments received by us, including delivery costs (with the exception of additional costs incurred by choosing a delivery method other than the cheaper standard delivery offered by us). For this refund we use the same payment method as was used for the original transaction unless something different is explicitly agreed with you; in no instance will any charges be levied against you for this refund. We can refuse this refund until we have received the goods back or until you have provided proof that you have sent the goods back, depending on which is the earlier point in time.
You have to send back or surrender the goods immediately and in any case at the latest within fourteen days from the day on which you informed us of the termination of this contract. The period is observed if you send the goods before the end of the period of fourteen days.
You bear the immediate costs of returning the goods.
You must only pay for any loss in value of the goods if this loss in value can be traced back to incorrect handling by you after an examination of the nature, characteristics and functions of the goods.
End of revocation instruction
(4)The customer can renounce their right of revocation by the submission of a relevant statement in the dguard®customer portalif they wish to activate the SIM card installed in the dguard® eCall module before the end of the termination period.
§ 7 Payment
(1) Prices and dispatch costs
All prices are to be understood as inclusive of VAT as well as the costs of packaging and dispatch, unless collection by the customer from the Digades business address in Zittau has been agreed.
(2) Payment conditions
All receivables from Digades that are ordered at a cost in the Digades online shop are due for payment immediately. Charges for the service contract are due for payment immediately at the beginning of the extension period (see § 4 Para 1, 2nd Subpara. sentence 1 or § 4 Para 3 sentence 1).
The customer's payment is deemed to be in arrears if it is not received by Digades within two weeks following receipt of the invoice. In the case of payment arrears, interest is calculated at 5 percentage points above the basic interest rate of the European Central Bank, and/or 9 percentage points above the basic rate of the European Central Bank for transactions in which a user is not involved. If the customer is in arrears, Digades reserves the right to charge reminder fees of 2.50 euros. The assertion of any other compensation for damages remains reserved. The customer has the right to prove that there has been no or minimal damage for Digades.
(3) Right of retention
The customer may exercise a right of retention only for such counterclaims that are outstanding and that are based on the same legal relationship as the obligation of the customer.
§ 8 Liability
(1) Digades accepts no liability for the correctness, completeness and currency of the data and information transferred by Digades dguard®. The same applies to the consequences of disruptions, interruptions and functional impairments in the transfer of the automatic emergency call or the automatic emergency warning, particularly in those cases described in § 2 Para. 4 and § 4 Para. 2.
(2) Digades assumes liability in all cases of contractual and extracontractual liability in cases of malice or gross negligence according to the legal conditions for compensation or reimbursement of unnecessary expenditure.
(3) In all other cases Digades is liable, insofar as paragraph 4 does not stipulate otherwise, only for a violation of material contractual obligations, i.e. the fulfilment of which enables the proper implementation of the contract and compliance with which the customer regularly trusts and may trust (so-called cardinal duty), and is limited to the reimbursement of foreseeable and typical damages. In all other cases, liability is excluded, subject to the regulation in paragraph 4.
(4) The liability of Digades for damages due to injury to life, limb or health and according to the product liability law remains unaffected by the liability limitation and exclusion of paragraphs 2 and 3.
§ 9 Limitation
(1) The applicable legal limitation conditions apply.
(2) If the customer is a trader (that is a natural person or legal entity, or a legally responsible business partnership that submits the order in the capacity of its commercial or independent business activity), the general limitation deadline for claims for material or title defects deviating from § 438Para. 1No.3 BGB is one year after delivery of the goods.
The above limitation deadline for the purchasing right also applies to contractual and extracontractual compensation claims by the customer which are based on a defect in the goods, unless the application of the usual legal limitation (§§195, 199 BGB) would, in an individual case, lead to a shorter limitation. Compensation claims by the customer according to § 8 paragraphs 2 to 4 as well as according to the product liability law are limited exclusively according to the legal limitation deadlines.
§ 10 Referral, governing law and jurisdiction
(1) Validity of the General Terms & Conditions
These conditions apply only as a supplement for the purchase of the Digades dguard® system. Except where these conditions govern to the contrary, the Digades General Terms & Conditions apply additionally; this does not apply to such regulations in the Digades General Terms & Conditions which clearly only relate to the purchase of the product"Digades dfreeeze®"and are only meaningfully applied for the purchase of that product.
(1) Choice of law
Unless mandatory legal provisions according to the customer's right of residence provide otherwise, the law of the Federal Republic of Germany shall apply in the contract and these conditions. The use of UN sales law is excluded.
If the customer is a trader, a legal entity of public law or a special asset under public law and has their domicile in Germany at the time of ordering, or if the customer has no general jurisdiction in the Federal Republic of Germany, the exclusive jurisdiction for all legal disputes arising from this contract is stipulated as Zittau, the location of the head office of Digades. Moreover, the applicable legal provisions apply for the local and international jurisdictions.
§ 11 Severability clause
Should one or more of the provisions of these conditions be inoperative in whole or in part or lose their legal validity later on, the validity of the remaining conditions shall be unaffected by this.
§ 12 Information on battery law
(1) Digades indicates that the customer as the end user is legally obliged to return used batteries.
(2) The customer can return batteries after use to Digades or to a disposal point provided for that purpose (for example in communal collection points or in the shop) free of charge. The customer can also send the batteries back to Digades by post. In this case, Digades will refund to the customer the cost of postage for the return of the old battery.
(3) The icons on the batteries mean the following:
a) The symbol of the deleted rubbish bin means that the battery may not be placed in household waste.
b) Pb = Battery contains more than 0.004 percent lead
c) Cd = Battery contains more than 0.002 percent cadmium
d) Hg = Battery contains more than 0.0005 percent mercury.