General Terms and Conditions of Use
GTX GmbH - Last modified October 15th, 2015
1. General Terms
These General Terms and Conditions of use (GTC of use) set forth the basic terms of the future cooperation of the parties and shall be an integral part of the written Service Agreement signed by the parties.
1.1. GTX GmbH, whose principal place of business is at Erftstraße 19a, 50672 Cologne, Germany, herein after referred to as Service Provider or we, provides an online portal (Portal) through its website gtx-messaging.com as well as all corresponding domain names and certain interfaces. Above mentioned Portal gives clients, herein after referred to as Client or you, who have signed up in accordance with these general GTC, the opportunity to send and receive SMS, MMS, and similar short messages. Further information on these Services can be found in paragraph 3.
1.2. These general GTC of use apply to all Services (Messaging Services or our Services) the Provider places at disposal within the framework of this Service Agreement (the Agreement, the Contract). By signing up, the Client accepts the GTC of use as in effect at this time. To do that, he must activate a check box in the process of signing up, declaring that he accepts the current GTC of use. These as well as the included specifications of Services, overviews or attachments can be accessed at anytime on www.gtx-messaging.com/en/company/terms/.
1.3. These GTC of use shall apply exclusively. Any varying, opposing or additional terms on the Client’s part will only become integral part of the Service Agreement if the Service Provider has explicitly and in written form agreed to them (§126b German Civil Code). This also applies if we concluded the contract in awareness of possible variations of terms.
1.4. The contractual language is German. If any translations of these terms or other declarations and documents regarding the contract are made, the German version shall prevail.
1.5. The Service Provider hereby declares that the GTC of use are subject to change at any time. Possible changes will take effect unless the Client objects in written form within one month after having been noticed of the change. Furthermore, the Service Provider has to have adverted to the Client’s right to objection and the objection period beforehand. If the Client objects in a timely manner and in written form, the previous GTC of use apply. In that case, however, the Service Provider reserves the right to terminate the existing contract with the client within two weeks after having received the letter of objection (for further information see paragraph 7). An exception to these terms are the fundamental contractual obligations, meaning those obligations, the fulfillment of which make proper performance of the contract possible and the observance of which the other party with good reason usually rely on.
2 Sign Up, User Account
2.1 Making use of the Messaging Services requires for the Client to create a user account via the portal (sign up). The Client does not have a claim on to sign up. We reserve the right to reject applications for a sign up without giving reasons.
2.2 The sign up is reserved tor natural person and companies that are entrepreneurs (§14 German Civil Code), merchants, corporate bodies under public law, or a special fund under public law. As an entrepreneur or a merchant you are only allowed to sign up if you are of legal age and of unlimited legal capacity. Underage persons are not allowed to sign up. The sign up for corporate bodies is to be made by a person of unlimited legal capacity who is at the same time authorized to represent.
2.3 During the sign up, we ask the User to create credentials (user name, password) as well as to record partially mandatory registration information like name, company name, email address, p.r.n. telefax, VAT ID (p.r.n. tax identification number). We reserve the right to ask for any kind of verification (e.g. trade register excerpts, business registration or the like), may it be paper-bound or electronic. All these details and all information must be truthful and complete.
2.4 After having verified your information, we will enable your user account and give you notice about the enablement via email. With this email, we accept your registration application. As soon as you have received the email, you are free to use the portal and the Messaging Services within the margin of the GTC of use. However, you will have to click on the link in the email and confirm the activation of your account first.
2.5 After having confirmed the activation as described in paragraph 2.4, you can log in and access the portal. It is your responsibility to maintain secrecy about this information, including your password, toward third parties and to take adequate safety measures to do so.
2.6 Furthermore, it is your responsibility to ensure that the only people accessing and using the portal and the messaging Services are yourself and those who are authorized by you to do so. Should there be any suspicion that unauthorized third parties have or will become aware of your login data, the Service Provider is to be informed about the situation immediately.
2.7 The User shall be liable in accordance with the legal provisions regarding every chargeable use or other activity with his login data.
2.8 The User undertakes to keep his information, data, and documents (as described in paragraph 2.3) up-to-date at all times. Any changes that may arise have to be updated in the user account’s settings without undue delay.
3 The Service
3.1 Through the Agreement the Service Provider makes the portal as well as a mobile messaging gateway (SMS gateway) available. Therefore the Client can send and p.r.n. receive SMS through all respective addenda to the Agreement, for example specifications regarding product class, account, service specifications, and specified mobile operators, while at the same time making available some of our other Services. The provided Messaging Services include
- Granting the Client access to the portal through the necessary ports (API)
- Making the portal available for the Client to use it, including the offered features, especially the broadcast web tool (Web Tool) and the number look-up (look-up) which makes it possible for the Client to feed the SMS to be sent into the portal using features connected.
- Making available the SMS gateway to ensure the SMS transfer to external interfaces (external APIs), to the access and reception routes of the respective mobile operator or third parties, like suppliers.
3.2 The Service Provider makes the portal and the SMS gateway available as required by the Messaging Services described in the service description at the time of the User’s sign up. Apart from that, the User does not have any right to raise a claim on a special form of or additions to the Messaging Services. The Service Provider reserves the right to change their Services at their own discretion, but in consideration of the Client’s interest, or to terminate the Services temporarily or permanently, on condition that the Service Provider’s fundamental contractual obligations are not affected and that these measures are reasonable toward the Client. The procedure described in paragraph 1.5 shall apply correspondingly.
3.3 The Service Provider only has to offer a better quality than described in paragraph 3.2 if this has been agreed on beforehand in written or textual form. The portal’s or SMS gateway’s interoperability and the Client having all the necessary hardware and software is not part of the Agreement unless the Service Provider explicitly documents compatible hardware and software, especially in the service description as described in paragraph 3.2.
3.4 The Client can access the portal and the SMS gateway via internet. It is your responsibility to make sure that there is an internet connection and that you have access to all the necessary software (e.g. browser, plug-ins or apps).
3.5 The Service Provider makes the Messaging Services available to the Client as a browser- or app-bound service that can only be accessed via an operating system the Service Provider agrees on. Making available source codes or interface definitions is not owed unless they were part of the Agreement.
4 Client Obligations
4.1 The Client undertakes that he will not use the Service for any illegal, immoral or improper purpose or in any manner which contravenes applicable laws and codes, regulatory requirements of the appropriate jurisdiction or mobile operator requirements as they exist and as they change over time. Furthermore, the Client alone shall be liable for the legality of the SMS he sends via the Provider.
4.2 The User is obligated to observe the current law and to respect the rights of third parties. It is particularly prohibited for the User to
- violate property rights of third parties, for example trademark rights, copyrights, or other intellectual property rights as well as personal rights, the right relating to the use of name through sending or receiving SMS and their contents
- transmit, send or receive insulting, defamatory, pornographic youth-endangering or other contents and links that are punishable under criminal law via our platform
- intolerably bother third parties with unsolicited sent advertising (spam)
- intolerably bother third parties with suggestive or sexually characterized communication
- try to affect or damage the security system and firewall used by the Service Provider by committing a crime, e. g. spying out data (§ 202a German Criminal Code) or Capturing Data (§ 202b German Criminal Code)
4.3 Furthermore, the User is responsible that he only sends those SMS via the portal that are compatible with the Provider’s technical specifications and their interface description.
5 Suspension and Sanctions
5.1 If the User violates these GTC of use or if there is an important reason as described in paragraph 7.4, the Provider is shall be entitled to impose sanctions at their discretion against the User. These sanctions can be imposed immediately and without giving prior notice, at the Provider’s own discretion, but taking into consideration the User’s interest.
5.2 As sanctions can be considered (i) deactivation and suspension of individual Services for the respective User (ii) the complete suspension of the account. The type of these sanctions depend on the severity of the User’s violation and stay intact at least until the User has stopped violating the GTC of use and until it is certain that there is no possibility of danger of recurrence.
5.3 Our right to extraordinarily terminate the contract due to important reasons as described in paragraph 7.4 stays intact as does the assertion of other claims. The User’s payment obligation shall remain unaffected in case of a suspension or other sanctions.
6 Pricing and Payment Terms
6.1 The sign up is free of charge.
6.2 The total of the fees for the SMS sent via the User account or other fee-based Messaging Services ordered, comply with the prices that are valid on the sending date. These are updated daily and can be seen anytime after the sign up in the Pricing Schedule. All tariffs and prices are stated exclusive of value added tax (VAT) as well as any incurred customs duties.
6.3 The Provider reserves the right to demand advance payment for the Messaging Services (Prepaid). Therefore, the User can charge his individual account with certain amounts of money. The Prepaid account will be charged according to the current tariffs and prices and to the tariffs chosen by the User, including value added tax. In case all the account’s credit is used up or non-existent the User will only then be able to send further SMS or other Messaging Services that are being charged if his account is (once again) charged with the sufficient amount of money.
6.5 The charging of the account will be booked after the amount is available for us, has been successfully booked by a payment Service Provider, or has been authorized by the respective bank. The Provider allows for the User to query the status of their credit account at any time. This information is non-binding and does not justify the User’s automatic claim on Messaging Services with the respective equivalent amount.
6.6 All charges for sent SMS or other Messaging Services that are being charged shall be paid in advance unless otherwise agreed. Invoices shall be issued for every order (account charge as requested) and by electronic means. The email shall be sent to the email address the User has before given to the Provider. The User agrees to the billing via electronic means and according to Art. 14 para 1 of the German VAT Act. The User, however, cannot claim that the billing shall be made in writing.
6.7 The User is entitled to order and use fee-based Messaging Services within the validity period of his account balance. After the order has been placed, the User’s account shall be debited with the according amount. For an account balance of less than 50,00 EUR the validity period shall be 6 months from the initial payment. The validity period can be extended to 12 months by charging the account beyond this amount. The maximal validity period is 24 months. After the validity period has ended, the Provider charges a handling fee of 50,00 EUR on unused credit if the Agreement has not been validly terminated as mentioned in paragraph 7 at the end of the validity period. Any account balance less than 50,00 EUR will expire in this case. Notwithstanding to the User´s rights according to paragraph 7.3 it is not possible for any paid in amount to be refunded.
6.8 The User falls in default if he fails to make the payment within thirty (30) days after the due date and receipt of the invoice or a similar payment list. Furthermore the default has to be pointed out to the User on the invoice or the similar payment list. Should the User fall in default of payment, the invoiced total amount shall bear interest at the rate of 9 percent above the base rate. This shall not apply if the User proves lesser damage or the Provider proves higher damage.
6.9 The User shall be entitled to a set off against the Provider only if his counterclaims are established as legally binding, having been accepted by us, or are indisputable; this shall not apply if they are the User’s deficiency claims against the Provider, arising out of the same contract. The User’s right of detention shall only apply if his counterclaim is based on the same contract.
7.1 The Agreement shall remain in force until the expiry or termination of all of the Addenda. However, the Agreement can be terminated by both sides at any time with a two-week cancellation period at the end of a calendar month. The termination has to be announced in written or text form (e. g. via email).
7.2 After expiry or termination of the Agreement the User account and the access to the portal will be suspended. Contents submitted via the portal will be deleted completely with the expiry of the month after which the Provider received the notice of termination.
7.3 After expiry or termination of the Agreement all outstanding debts are due immediately. Any unused positive credit balance shall be refunded to the Client at his request sent to the Provider in written form.
7.4 The right to extraordinarily terminate the Agreement for an important reason remains unaffected for either party. An important reason is present if (i) the other party has breached any obligations under these GTC of use and has failed to cure such breach; (ii) the other party ceases to trade or to pay its debts in the normal course, meaning being in default for more than two calendar weeks after a written reminder has been issued; or (iii) the User becomes insolvent, bankrupt or goes into liquidation.
8 Limitation of Liability
8.1 Notwithstanding anything else to the contrary in these GTC of use, the Provider is liable according to the legal provisions. This shall also apply to the Provider’s legal representatives and agents.
8.2 The Provider is liable for damages, regardless of the legal reason, only in case of intent or gross negligence. Regarding services that are free of charge, the liability is excluded in case of ordinary negligence. Furthermore, in case of ordinary negligence the Provider shall only be liable for (i) damages resulting from the destruction of life, personal injury or health damages, for (ii) for damages from the breach of an essential contractual duty. In case of a breach of an essential contractual duty, the liability is limited to the reimbursement of the foreseeable typically occurring damages. Furthermore, the liability for direct damage especially such as for escaped profit or for subsequent damage is completely and expressly excluded. This shall not apply if the Provider has fraudulently concealed a defect or has given a quality guarantee for the goods. This includes claims based on the product liability laws.
8.3 If the User asserts deficiency claims and if the examination of the notice of defect discloses that alleged defects or limitations of the product’s functionality do not exist, or the Provider is not responsible for the damages claimed, the User shall be obliged to pay the reasonable cost and expense for work commenced by the notice of defect. This shall not apply if the User is not responsible for unjustified complaints, especially if the User could not to realize that the claimed defect is established or respectively, the Provider is not responsible therefore.
8.4 The availability of our Services can temporarily be limited for technical reasons the Provider is not responsible for. Furthermore our Services can be completely or partially limited on grounds of force majeure (loss of power and/or internet connection, fire, explosion, earthquake, storm, flood, or industrial action the Provider is not responsible for). Another reason of limited services can be maintenance, which is to maintain and improve the operability and functionality of our Services. The Provider is only liable for the consequences of limited availability of the Services only insofar as a certain level of availability is contractually assured in the service description or and according to this paragraph 8.
8.5 The User himself shall be fully liable for his breaches of duty. The User shall release the Provider of all monetary claims other users or third parties may claim if the Client uses our services for illegal activities. The User shall be obliged to pay the reasonable cost and expense at first request resulting from such illegal activities, especially the expenses for the legal defense. This does not apply if the User is not responsible for these illegal activities. The Provider’s other claims against the User shall remain unaffected.
9 Intellectual Property Rights
9.1 Notwithstanding anything else to the contrary in these GTC of use, the user shall not edit, change, translate, exhibit, show, publish, duplicate or distribute any of the Portal’s contents (e.g. pictures, logos, texts, and other contents), computer software, databases and other copyrighted works, trademarks, corporation and name rights as well as the respective copyright notices or other trademarks or protection notes. Furthermore the User shall neither remove nor change those.
9.2 The User allows the Provider to use their transmitted, saved or received contents as far as it is necessary and appropriate for providing the agreed Services.
10 Confidentiality and Data Protection
10.1 The Provider values data protection. Therefore, the Provider shall only collect, process, or use (“data usage”) the User’s given personal data in connection with the sign up and the use of the Messaging Services, including inventory data, traffic data, and usage data, as far as it is necessary for the completion of the contractual Services and, in other cases, if and insofar the legal regulations allow or require to do so. Moreover, the Provider only uses the User’s data as far as the User explicitly agreed to it. The Client can revoke their consent at any given time.
10.2 The Provider shall only use the User’s personal data in accordance with the current data protection law and shall not pass the data on to third parties. The Provider reserves the right to transmit the inventory data as far as it is necessary for the cession of financial claims. The transmission of additional user data permitted by law for the purpose of collection of debts shall remain unaffected.
10.3 Apart from that, the Parties shall maintain silence regarding confidential information they are either given by their respective partner or they have gained knowledge about otherwise. Furthermore, both Parties shall not transmit any data to third parties (e.g. competitors) as long as they do not have the respective other Party’s consent in written form. Unless otherwise designated in individual cases, confidential information shall include, without limitation, all documents or information of the Parties which have been marked as confidential, or whose confidential nature is obvious due to their nature or circumstances of disclosure, especially information referring to operational processes, business relations and know-how. Both Parties shall obligate all those employees to maintain strictest confidence, who have access to the information in the context agreed upon in the Agreement.
10.4 The duty of confidentiality does not apply to information which
- the recipient already knew about when the contract was concluded or became known to them from a third party without violating the confidentiality Agreement nor any legal and official regulations
- is publicly known when the Agreement is concluded or made public afterwards, as long as it does not violate the contractual agreements
- is excluded subsequently in a written Agreement
11 Final Clauses
11.1 The assignment of claims by the User regarding the Agreement requires the Provider’s approval and can only be denied for an important reason.
11.2 The Provider reserves the right to transfer the contract completely or partially to a third party (contract transfer). The User shall be informed about these proceedings in writing and at least one calendar month in advance. If the User terminates the contract in written form and within one calendar month after having received this information, the Agreement shall end with the contract transfer at the latest. Otherwise the contract shall be transmitted to the third party including all rights and obligations as they were agreed on by the User and Provider when the contract was first concluded.
11.3 These GTC of use shall be subject to the law of the Federal Republic of Germany excluding the United Nations Convention of Contracts for the International Sales of Goods (CISG).
11.4 The exclusive legal venue over all disputes arising under these GTC of use, as long as such a choice of court agreement is admissible, is the location of the Provider.
11.5 Additional oral agreements have not been made. Changes or supplements regarding these GTC of use as well as regarding all declarations made in the Agreement by the Parties require text form. This shall likewise apply to any waiver of such form requirement.
11.6 If individual provisions of these GTC of use should be declared invalid or unenforceable in part or in whole, the remaining provisions or the remainder of the questionable provisions of these GTC of use will not be affected. In this case as well as in the event of a possible incompleteness of these GTC of use the law shall apply.