§ 1 Subject of the Agreement
- First Telecom GmbH, Lyonerstraße. 15, 60528 Frankfurt (“First”) provides all services for its contract partners (“Partner(s)”) exclusively based on these General Terms and Conditions (“GTC”), as well as any other possible Special Terms and Conditions (“STC”) for services individually provided by First.
- The services of First are further determined according to the information provided by the Partner in the contract form, the respective service description valid at the time at which the contract was signed, the “Customer Care” price and service overview, the relevant user manual for the product selected by the Partner and technical specifications as well as interface descriptions.
- The fees to be paid by the partner for the individual services as well as any compensation claims of the partner against First shall be determined according to the contract form, these terms and conditions, the respective special terms and conditions for individual services as well as the prices communicated at the conclusion of the contract or in the event of any price increases or decreases (Price list, contract form or contract confirmation). The relevant documents can be requested from the First at email@example.com.
§ 2 Scope of Services
- First transmits content to the system interfaces/gateways of network operators for content forwarding by the network operator to the intended recipients. The transmission and forwarding of content in the telecommunications networks (“TC network”) of third parties (mobile networks, landlines) and the delivery of content to recipients is not part of the contractual service obligation of First. Text messages are held in the First systems for a maximum of of 48 hours for transmission to the mobile networks and then deleted, even if they have not been transmitted to the mobile network or delivered. If faults occur in the TC networks of third parties that delay or permanently prevent the delivery of content to the intended recipient, First is not obliged to resend the content.
- Unless the parties have expressly agreed otherwise, First will not make its services, especially applications, content and abbreviated numbers, available for exclusive use by the Partner.
- The Partner is not authorised to make the services of First available to third parties for their offer to end customers without prior written approval from First (exclusion of reselling).
- To maintain or improve the products and services, First may conduct changes and modifications to the interfaces or the infrastructure used for processing the services, to the extent that it is reasonable taking the justified interest of the Partner into account. Foreseeable changes and conversions are announced to the partner five business days in advance.
- If First is in default with a contractual service, the Partner is only entitled to withdraw if it has provided First with a reasonable grace period and First has not provided the service within this grace period. The grace period must be at least two weeks.
§ 3 Availability, Maintenance and Fault Management
- The average annual First system availability is 98% (without planned outages).
- If expected maintenance work is necessary (“planned outages”), these are announced five days in advance. Maintenance work is completed during off-peak hours. Expected maintenance periods may not exceed an annual average of two hours per week. Expected maintenance periods are not taken into account when calculating availability.
- If planned maintenance work is necessary for maintaining system functionality, First will immediately inform the Partner by stating the start and expected end time. For this purpose and for clarification of all technical and organisational processing issues in connection with the execution of this contract, the Partner will provide First with a contact available at any time.
- If there is a First system fault, First will start remedying the fault within half an hour of becoming aware of it during office hours and within two hours outside regular office hours. Office hours are Monday to Friday – except on national holidays or holidays in Nordrhein-Westfalen, Germany – from 09:00 to 18:00.
- If unexpected maintenance work or fault rectification is necessary for reasons originating from the Partner and system function is disrupted as a result, these outage periods are not included in the calculation of the contractually owed availability. If the outage is the responsibility of the Partner, the Partner will reimburse First with the costs incurred due to the outage.
- The First hotline is available for fault reporting on +49 (0)69-65006-110, seven days a week, 24 hours a day. This hotline is available for all other issues from Monday to Friday – except on national holidays or holidays in Nordrhein-Westfalen – from 09:00 to 18:00.
§ 4 Duties of the Partner
- In addition to the obligation to pay the contractually agreed remuneration on the due date, the Partner is obliged when using the First services to comply with the applicable laws and regulations, availabilities and decisions by the Federal Network Agency as well as the latest version of the DVTM’s (German Association for Telecommunication and Media) Code of Conduct (Germany) for Telecommunications and Media (“German Code”). Information about the German Code, as well as its current version, can be obtained as in the context of a licensing model from the DVTM, Birkenstraße 65, 40233 Düsseldorf, Germany, www.dvtm.net.
- The Partner is solely responsible for the content it provides to First for forwarding. The Partner guarantees that the content is only transmitted to recipients who consent to receiving this content and who have issued this agreement in a legally binding form, or, in the case of text message advertising, the requirements of 7 Para. 3 of the Unfair Competition Act are adhered to (ban on spamming). In the event that a recipient files a complaint, the Partner will provide First with the proof of consent received or compliance with 7 Para. 3 of the Unfair Competition Act.
- In particular, the Partner is obliged
- a) to ensure that no content is offered or conveyed for use that is criminal or not permitted according to 184 Para. 1 of the Criminal Code (distribution of pornographic materials), according to 4 The Interstate Treaty on the Protection of Minors (JMStV), according to 8 Para. 1 Clauses 2-4 of the Interstate Agreement on Media Services (MDStV) or other applicable laws, regulations or Interstate Agreements;
- b) to ensure that content in line with 4 Para. 2 of the Interstate Treaty on the Protection of Minors is offered only if the Partner makes sure that content is made accessible to adults only;
- c) to ensure that “Content impairing development” in terms of Article 5 of the Interstate Treaty on the Protection of Minors is offered only in accordance with the regulations of the Interstate Treaty on the Protection of Minors;
- d) in advertising, to observe the legal regulations, especially the price regulation, Unfair Competition Act and Telecommunication Act as well as Article 6 of the Interstate Treaty on the Protection of Minors;
- e) not to send unlawful content, especially content violating patent, brand or personal rights or other property rights, content violating third-party rights and content that is offensive, extremist, glorifies or trivialises violence, glorifies war, advertises for a terrorist or extremist political party, solicits criminal acts, makes defamatory statements or is criminal in nature;
- f) not to distribute, or have distributed, information or other content, or to refer to such content as is capable of disparaging First or other contract partners of First identifiable as such for the Partner – especially the mobile network operators – in full knowledge of the content or to damage their reputation in any other way.
- g) not to bypass any First system or third-party security precautions, or otherwise improperly use service offers, attempt this or support third parties in such attempts;
- h) to ensure that when dispatching text messages, the recipient can easily trace all messages back to the sender of the message;
- i) not to transfer any viruses, chain letters or other harassing or unsolicited messages;
- j) in its communication or when processing a service, not to name or display any registered trademarks or respective logos of the network operator or a company that is part of the group of a network operator, unless the authorised party issued the Partner written consent in an isolated case, which First must receive in advance;
- k) not to use any equipment or execute any tasks that result or can result in damage to First equipment, especially as a result of modification to the physical or logical structure of the First servers, or the transfer to participating networks;
- l) to transmit data within the scope of the service offer exclusively in accordance with the specifications defined in the respective user manual or technical descriptions;
- m) to utilise data pursuant to data protection legislation;
- n) to store carefully and keep secret any passwords or other access numbers that provide authorisation for using the service in order to avoid any misuse. As soon as the Partner has cause to suspect misuse of the password, First must immediately have it changed. If third parties utilise the secret access data to use the contractual service, the Partner is obliged to the same duties as if it were its own use. This applies in particular to the payment obligation. The obligation is not applicable to the extent that the Partner is not liable for this third party use;
- o) to immediately provide written notification of any name change, move of registered offices or legal address, legal form and bank account..
- When dispatching text messages via the systems of First, the Partner is obliged to use a First abbreviated number as the sender identification, and only solicit abbreviated numbers or service call numbers from First.
- If the Partner offers the services to end customers in its own name, it is responsible for making sure that its contract conditions are effectively included, that these do not contain any unacceptable clauses for the end customer, and that the end customer is adequately informed according to §312 b et seq. of the German Civil Code (BGB), Art. 246 Introductory Act to the German Civil Code (EGBGB).
- If the Partner violates any incumbent obligations and does not immediately cease this contract-breaking behaviour despite warnings, First can block access or service. In this case, the Partner shall remain obliged to pay the monthly prices. The Partner shall release First from all third party-claims resulting in connection with a violation by the Partner against any of the above obligations, and shall hold First harmless.
- The Partner shall reimburse First for any contract penalties or other penalty payments that First must pay third parties, provided the penalty payment is based on the behaviour of the partner.
§ 5 Contract Changes
- First reserves the right to change the GTC and/or the STC, description of services and/or price lists at any time and without providing a reason. The notification of a modification of the contract shall be made in writing. The notification by e-mail is sufficient.
- First is further entitled to make contract changes, provided this is necessary as a result of changed technical, financial or legal parameters.
- First does not guarantee future availability of every German or international TC network. In this respect, First is in particular entitled to change the service if, for technical or financial reasons, a telecommunications network should not be available. First is especially entitled to end the availability of a certain TC network if, due to existing or pending insolvency of the respective network operator, First fears being unable to realise or fully realise the payment claims owed by this network operator.
- Changes to the legal parameters may in particular be based on a change of relevant laws/regulations or decisions made by the Federal Network Agency or courts, as well as on changes to contracts signed by First with the respective operators of TC networks, owners of rights and collection companies, and predominantly specified by them.
- Changes to remuneration and Partner remuneration are permitted in the event of changes in financial conditions, especially in the case of increases in price or reduction of distribution by previous vendors (especially the operator of TC networks and rights holders/collection companies). Changes to Partner remuneration are also permitted retroactively within six months of the billing date, provided the TC network operators reduce the payment amounts to First – especially due to increased loss of receivables. An increase in remuneration should be based on the increase of costs for providing the service by First.
- The Partner may object in writing to changes made by First to the GTC/STC and/or other contract changes, in accordance with the above paragraphs. The right to object shall expire four weeks after the partner has received notification. First shall inform the Partner of its right to object when notifying it of the change. If the Partner objects to the change within the specified time frame, the contractual relationship will continue without change; otherwise, the changes to the contractual relationship will become effective upon expiry of four weeks from the partner receiving notification, or at the time specified in the notification. If the Partner objects in due time, First is entitled to extraordinary cancellation of the contractual relationship within four weeks of the date on which First received the objection.
- First is further entitled to change its contractual services and the remuneration to be paid by the Partner or distributions to be paid to the Partner, provided that these changes do not compromise the rights of the Partner.
§ 6 Billing; Payment Obligation
- Depending on the products and services selected, First provides the Partner with a monthly bill for the remuneration to be paid. If a minimum turnover or minimum volume has been agreed and is not reached, First is entitled to invoice the partner for the difference. First will further prepare a invoice bill, no later than four weeks from the end of the billing month, for any remuneration (“distribution”) owed to the Partner. The basis for the invoices are the billing data (CDRs) generated in the First internal systems or First supplier systems for the respective service.
- The invoice data are saved up to six months after the invoice is sent. Once the data have been deleted, First is released from the duty to present these data as evidence for the accuracy of invoicing for the remuneration and Partner remuneration. Objections to an invoice (remuneration or partner remuneration) must be promptly – however, no later than within eight weeks after the respective invoice is sent – asserted in writing to First customer Business Care at the address stated in 1.1. Failing to file an objection on time is considered approval. First will notify the Partner in the invoice of the term for asserting an objection as well as the consequences if not the objection is not completed on time.
- The remuneration to be paid by the Partner is due upon receipt of the invoice, without deductions, and is collected at maturity by First directly from the partner’s bank account, based on the collection authority the partner issued for this purpose. If the partner does not provide a collection authority (e.g. if paying via transfer or cheque), First may request additional remuneration for each invoice for the higher administrative expense when processing the payment transaction.
- For every debit note returned because of lack of coverage or due to the level of debt of the Partner or its bank, First will charge a service fee of EUR 30 for the return debit note for which the Partner is responsible. The Partner reserves the option of providing verification that First did not incur any damage or only slight damage. The possibility of First asserting greater damage remains unaffected.
- The Partner must also pay remuneration created by permitting third parties to use the services. Furthermore, the Partner must make sure that these third parties comply with the aforementioned obligations. The Partner must pay remuneration receivables created by third parties using the services without authorisation, if and insofar as the Partner is responsible for this unauthorised use.
- At its discretion, First is authorised to pay the partner the monthly credit notes only on 28 February and 28 August of each year, provided that the accumulated credit note amount are less than EUR 100. Furthermore, the credit notes are paid according to the provisions of the service’s applicable Special Terms and Conditions.
- Possible reimbursement claims by the Partner, e.g. based on over-payments, double payments etc., are credited to the Partner’s deposit account, or settled with the next receivable due. If the Partner expressly requests and there are no open First receivables, the reimbursement is directly deposited to the provided First bank account.
- The Partner is responsible for all bank fees associated with foreign payment transactions.
- In addition to the legally regulated cases, the Partner is in default if it receives an overdue notice after the payment date. If the Partner is in default, First is entitled to charge interest in arrears at five percentage points above the base interest rate. First reserves to right to assert further claims for damages caused by default. For every overdue notice issued after a default event, a service fee of EUR 20 may be charged. The partner reserves the option of providing verification that First did not incur any damage or only slight damage.
- First is entitled to satisfy payments on which the Partner by claiming collateral provided by the Partner. If First claims the collateral, the Partner is obliged to immediately refill the collateral to its original amount if the contract is continued. First will release the collateral after the contractual relationship has been terminated and once all receivables have been settled. Furthermore, value-added network services may be blocked or the service may be stopped altogether. In this case, the Partner shall remain obliged to pay the monthly remuneration.
- The Partner may only offset receivables defined as indisputable or legally in force.
§ 7 Payment of the Partner remunerationng
To the extent that First is obliged to pay remuneration to the Partner based on a contractual agreement with the Partner, the payment is made in accordance with the following provisions:
- 1. First pays the Partner the distribution amount owed on the date due to the account stated according to 6.3.
- 2. The Parties agree that the collection and loss of receivables risk for internal relationship distributions between the Parties is not borne by First. This particularly affects the cases in which the respective entitlement to remuneration from the participating network operators or mobile network operators or end customers cannot be realised. The Parties agree that First is not obliged to pay the partner remuneration to the Partner, insofar as this payment is not realised by First receiving corresponding remuneration. Insofar as the Partner is not receiving remuneration at all or temporarily from First, the Partner is still obliged to pay the remuneration for the services provided by First (e.g. connection fees).
- 3. The Partner remuneration is paid via direct transfer no later than eight weeks after the end of the billing month, provided First received the respective remuneration from its previous suppliers. If First does not receive the remuneration from the previous supplier until eight weeks after the end of the accounting month, First will transfer to the Partner the portion of the remuneration owed within four weeks of receiving payment. Special terms and conditions of First may also specify that payments are generally made as advance payments and, subject to reclaim, are provided by the final credit note.
- 4. If a previous supplier of First is reclaiming distributions already paid to First and that affect services that First provides to the Partner, First is authorised to obtain further collateral from the Partner until the previous supplier claims have been resolved. If First repays the previous supplier, the respective payment claim of the Partner shall expire; as soon as and insofar far as it will be legally decided that the previously supplier is not owed any repayment claims, First will repay the Partner the additional collateral requested.
- 5. The partner remuneration is calculated as of the point in time at which the service has been established at First.
- 6. First is authorised to settle any existing receivables from the Partner – regardless of the contractual relationship – with the partner remuneration to be paid, and to reduce payment proportionate to the amount of the existing receivable. If, during the course of the settlement, there is a balance owed by the partner, First will invoice this amount.
- 7. First is authorised not to pay the partner remuneration if First has sufficient reason to believe that the service is being used in an unlawful manner, especially if a TC network provider, service provider or rights holder informs First that there are signs of criminal or otherwise unlawful behaviour associated with the offer or use of the service. This applies especially in the case of shut-down orders, as well as billing and collection bans by the Federal Network Agency, that affect the use of First services by the Partner. If First has already paid the partner remuneration, First is entitled to reimbursement of the partner remuneration, or to settle it with other Partner payment claims.
§ 8 Liability
- First is liable without restriction in the event of culpable damage to life, limb or health.
- If one of the Partner’s customers (“third-party customers”) makes a claim due to property damage caused by the provision of telecommunications services by First, and if First is responsible for this inter partes, First is liable only up to EUR 12,500 for each damage event for each third-party customer. The liability to the entirety of the third-party customers is limited to EUR 10 million for each event causing damage. If the amounts exceed this maximum limit because they are owed to several partners based on the same damagecausing event, the compensation for damage is reduced proportionately by adding up all the compensation for damage claims up to the maximum limit. The liability limit is not applicable if the damage was caused deliberately.
- In case of slight negligence of material obligation, the First liability is limited to the foreseeable damage typical for the contract. A material obligation is such for which proper execution of the contract is not possible until it has been fulfilled and its breach impairs fulfilment of the contract purpose, and the customer regularly relies on its compliance. Liability is limited in this case to a maximum of EUR 20,000 for each damage event and EUR 40,000 for each contract year. For other damages, First is only liable for compensation for damages in the event of intentional or grossly negligent breach of duty or violation of a stated warranty. The liability limitation according to Section 2 remains unaffected.
- Otherwise, liability for all damage shall be excluded, although liability pursuant to the provisions of the German Product Liability Act and liability for fraudulent intent shall remain unaffected.
- Insofar as the liability of First according to this Section 8 is excluded or limited, this also applies to personal liability of employees, representatives and assistants.
- For providing the service, First depends on the provision of TC networks by third-party operators (e.g. landlines, mobile networks, internet, data lines). First shall not assume liability for the integrity of the transmitted contents, i.e. that contents were transmitted without error. If technical or other faults occur in the operator networks due to force majeure that impair service operation temporarily or for a sustained period, First is released from fulfilment of the contractual obligations for the duration of the event. First will endeavour to rectify the fault as quickly as possible. First shall not assume liability for any damages or losses due to such faults.
- First is especially not liable for damages created because content is not available or available with delay to the Partner or its end customers because of circumstances outside the sphere of responsibility First, e.g. because of lack of availability of a third-party TC network. In this respect, the liability for direct and subsequent damages such as loss of turnover or profit is excluded.
- If a third party files a claim (regardless of whether justified or not) against First or a company affiliated with First, in terms of Sections 15 et seq. of the German Stock Corporation Act (AktG), based on the content of the telecommunications originating from the Partner’s sphere, or the offer/application of services by the Partner, the Partner shall release First from all claims and hold First harmless for damage. This is especially applicable, but not final, if the Partner has breached the obligations as per Section 4 of these General Terms and Conditions or other obligations according to the Special Terms and Conditions. First will immediately inform the Partner of third-party utilisation. It is incumbent on the Partner to provide evidence that third-party claims are not justified by the affected content, the contractual transmission by First or its advertisement. The Partner will make the respective evidence available to First, in a suitable manner, upon request and without delay.
- If, according to the contract, First is responsible for copyright payments to the collection companies and other rights holders, First will release the Partner from the respective payment claims, as well as from thirdparty claims justified by First failing to pay the copyright payments. If, according to the contract, the Partner is responsible for copyright payments to the collection company and other rights holders, it will release First from any liability accordingly.
§ 9 Contract Perior and Cancellation
- Unless otherwise agreed in writing, contracts are signed for an indefinite period of time. Each contract partner may terminate it in writing with notice of one month to the end of the month. .
- If First relies on previous suppliers for providing their services, First has a right to special cancellation in the event that a prior supplier stops service and an adequate replacement cannot be obtained.
- The right of extraordinary termination for good cause remains unaffected. A reason for extraordinary cancellation, in addition to gross breach of contract, is if the other contract party files insolvency proceedings.
- If the Partner breaches the contractual obligations, First has the right to temporarily block the Partner’s access and stop providing the services (“block”).
- The Partner’s duty to pay usage-dependent fees (including possible base fees) remain unaffected in this case. The block must be removed immediately, no later than within three days of First becoming aware that the reason for the block is no longer applicable.
§ 10 Confidentiality, Data Protection
- During the term of this contract and for one year after its termination, the Parties are obliged to nondisclosure of all information to which they had access during the contract relationship and that is deemed confidential or otherwise identified as a company secret, provided that it is not necessary for meeting the contract purpose, and not to record such information or forward it to third parties, or use it in any other way outside the purpose of this contract. Those contract partners that are considered affiliates as per Sections 15 et seq. of the German Stock Corporation Act are not considered third parties, provided that they have agreed in writing to non-disclosure. The non-disclosure obligation is also valid for the content of this contract and other agreements and arrangements made during its term. This shall not include information that can be proven
- to have been known to one of the Parties prior to commencement of contractual negotiations or legitimately communicated by third parties as non-confidential;
- to have been developed by the Parties independently from one another;
- to have been or which becomes publicly known without any fault or actions on the part of the Parties; or
- to require disclosure based on an official or judicial order.
- In the latter case, the other contract party must be informed immediately before disclosure. Other legal obligations to confidentiality remain unaffected.
- Once this this contract has been concluded, the Partner shall be entered in the First system. For the purposes of executing this contract, the data obtained from the Partner contract form are saved. First will process and save personal data according to the requirements of the relevant legal data protection rules and in compliance with other legal relevant provisions. First will comply with all applicable data protection provisions and design its technical equipment accordingly. First personnel are subject to corresponding obligations.
- First is entitled to provide consumers, consumer protection associations, competitor associations and other third parties that present justified interest, information about the identity of the partners, their accessible address and the First infrastructure they use (especially service numbers, abbreviated numbers, keywords). The provisions of the Injunctions Act remain unaffected.
§ 11 Final Provisions
The Partner irrevocably authorises the bank managing its account to provide First with general information about creditworthiness maintained by the bank and required in connection with utilisation of the services of First.
- The Parties have not made any ancillary verbal agreements. Any amendments and additions to this contract must be made in writing. The same also applies to any amendment to the requirement for the written form.
- The contractual relationships of the contract parties are subject to the laws of the Federal Republic of Germany, excluding the Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws.
- If any provision of the contract and/or these conditions is completely or partially invalid, the validity of the remaining provisions shall not be affected. Both Parties undertake in such a case to agree on a new provision that corresponds with the financial purpose of the invalid provision as closely as possible.
- The place of jurisdiction for all disputes arising from or in connection with this contract shall be Frankfurt.