General Terms and Conditions
of [company_name], [company_address], regarding the use of the services offered by its affiliated entities (= Service Provider) in the fields of internet, print media, telephone services, SMS and MMS services, and services in related areas.
§ 1 – Products of [company_name]. (hereinafter “[company_name]”)
- [company_name] offers products for internet, printmedia,Telefone services, SMS/MMS/WAP services, and related services for mobile phones and other mobile end user devices. “[company_name] Products” shall collectively refer to all products offered by [company_name]. The provision of all [company_name] Products is based on these General Terms and Conditions (“GTC”).
- [company_name] Products may be used by customers who own a mobile phone that technically meets the requirements of the requested products and who are customers of one of the mobile phone network providers, or the Service Providers, through whom [company_name] Products may be used as notified by [company_name].
§ 2 – Formation of Contracts
If a customer applies for a certain [company_name] Product by SMS, internet or WAP to be addressed to the number (short code) received from [company_name] or to any other dedicated dial- in number, this is deemed an offer to form a contract between [company_name] and the customer regarding the use of the respective [company_name] Product at the current price. [company_name] may accept this offer by either sending or making available the requested product or, if registration is necessary for the product in question, by confirming the registration by means of SMS, internet, or WAP.
§ 3 – [company_name] Services
- [company_name] reserves the right at any time to change, give up, amend, and/or enhance its products in whole or in part.
- In as far as nothing different results from [company_name]’s current product range, or from § 8 hereunder, [company_name]’s performance obligation consists exclusively in providing the requested [company_name] Product and, provided the respective [company_name] Product is designed and suitable for it, of dispatching it to the customer.
- In as far as [company_name] offers third party contents (cf. § 8) [company_name]’s performance obligation consists in distributing the respective content, upon receipt, to customer, according to the [company_name] Product in question.
- Irrespective of a [company_name] Product being classified as free of charge and of its being so provided, so-called transmission fees, or GPRS fees of the mobile phone network provider, may arise for the end customer to pay when a [company_name] Product is retrieved. The current price at the time of retrieval of each [company_name] Product can be checked both in the application and the content specifications of that product.
- Termination of a Service. To unsubscribe from a [company_name] subscription service go to the specific terms and conditions of the service
§ 4 – [company_name] Subscription Services
In addition to § 3, the regulations described below apply to all [company_name] subscription services:
- Each subscription service may only be used by customers of the mobile phone network providers or the Service Provider explicitly named in this connection. Each subscription only comprises the content category (such as videos, photographs (images), text contents, ring tones, mobile phone games, etc.), as listed in the subscription description.
- Subscribing to a subscription service is done by sending via SMS the keywords appertaining to that service, plus sending an additional text message as a confirmation (“handshake”), or by pressing a WAP confirmation key (“START DISPLAY”) addressed to the short code provided by [company_name] for that purpose, or else by selecting and ordering through the internet according to the procedure there described. If for a subscription service an end of validity period is expressly specified and no automatic renewal provided, the subscription service terminates with the end of the validity period stated. In all other cases, the subscription is renewed after the end of the first subscription period for a period of the same length, or otherwise stated in the specific terms and conditions of the service, unless the customer has given prior notice with respect to that subscription. If the subscription is renewed, the customer must again pay the subscription fee.
- A subscription may at any time be terminated with effect from the end of a subscription validity period without having to observe the notice term. In the context of an application for a subscription, a keyword is communicated to the customer to be used when terminating a subscription. Notice of termination shall be given by sending the keyword via SMS to the short code also provided. An instruction to terminate a subscription service and the necessary keywords can be retrieved from the internet pages stated in § 3 paragraph 5, or by contacting our customer service.
- [company_name] regrets that an unclaimed subscription credit cannot be carried over to the next subscription validity period nor can a remaining amount or the total subscription fee be restituted in the event of notice of termination.
- The customer may at any time inquire for information regarding his/her current subscription services.
- In order to be able to continue to make the requested subscription available to the customer even in the light of rising costs, e.g. for production or data transmission, [company_name] reserves the right to change content or prices. In some cases this will result in the termination of a subscription. [company_name] shall inform the customer in such cases.
§ 5 – Services provided by Third Parties
- Together with own services, [company_name] also acts as an agent for third party services. If a customer makes use of such a service, a contract is made only between the customer and the respective third party. In as far as is necessary in the context of a service procured by [company_name] and provided by a third party, the provision of that service may be based on the condition that the customer consents to his/her mobile phone number being made known to this third party.
- Any procurement performance on the part of [company_name] in this respect is subject to the provisions in these GTC.
§ 6 – Sending Advertisement, SMS, MMS
With the use of a service provided by the Service Provider, the customer irrevocably places an unrestricted and time-unlimited order to have advertisement, offers and information of all kind sent to his/her mobile phone via SMS and MMS, by Direct Mail, i.e. by regular mail, by email and by any other way (so-called explicit OPT-IN). The time-unlimited and unrestricted sending of SMS and MMS and the time-unlimited and unrestricted sending of advertisement, offers and information of all kind by regular mail, by email, and by any other way is considered as an explicit approval from the customer; it may, however, be terminated at any time by sending an email or calling the Service Provider (OPT-OUT). Any advertisement under this section is not considered to be undesired spam.
§ 7 – Customer’s Rights and Duties
- To be able to use some of the [company_name] Products, the customer is required to register with [company_name]. For [company_name] Products billed together with the customer’s mobile phone invoice, registration is made by sending an SMS with the order code applicable to the requested [company_name] Product to the short code communicated by [company_name] with respect to the mobile phone network used by the customer.
- The customer shall take adequate precautions against his/her fixed line, internet line and mobile phone line being abused by third parties. In the event of loss of the mobile phone due to theft or casual loss, the customer is responsible for the services used from his/her mobile phone until he/she communicates the loss of the mobile phone to the telephone company. The customer is obliged to communicate to [company_name] on request his/her current personal details, such as name and address and relative changes by email, regular mail, or by fax. In any event, the customer is liable for the use of his/her line, and the use of passwords and codes. This also applies to the use of fee-based services and to the use or abuse of their communication systems by third persons. The customer shall keep confidential all contractual data, such as pin code and other codes and passwords, in particular, he/she undertakes to keep all data in a safe place and make them inaccessible to others. The customer shall be liable for any damage arising from a violation of this protective provision.
- In as far as [company_name] collects data from the customer when the contract is concluded, the customer is obliged to give truthful information. Future changes with regard to these data must be communicated to [company_name] unprompted and without unreasonable delay.
- For the majority of [company_name] Products it is sufficient for [company_name] to know the customer’s mobile phone number. In as far as additional data and information of the customer are required, the product may only be used after communication of these data to [company_name].
- In as far as the customer receives a password with regard to the use of [company_name] Products, the customer is obliged to keep it confidential. He/she is not allowed to communicate the password to third persons. If the customer becomes aware of a third person’s knowledge of his/her password, he/she is obliged to promptly contact [company_name] by email to [support_email] or by regular post to [company_name]., Halstraat 31B, 4811HV Breda, The Netherlands and to arrange for the password to be disabled. Until such time the customer has arranged for the password to be disabled, he/she is liable for any costs that arise from the use of the password (in particular the retrieval of [company_name] Products), unless [company_name] is responsible for the password to become known.
- All the products offered by [company_name] are legally protected by copyrights, trademark rights, and industrial property rights. The customer is therefore entitled to use [company_name] Products exclusively for private purposes in accordance with the terms agreed upon. The customer is not allowed to make [company_name] Products available to third persons. A further use is only admissible to the extent explicitly approved by [company_name] or the respective partner companies.
- In the event of a violation of these GTC by the customer, the customer agrees to indemnify [company_name] for any damage resulting from this violation. The customer agrees to hold harmless and indemnify [company_name] against any and all claims from third parties caused by the acts of the customer.
- The customer shall pay all fees incurred by his/her mobile phone network provider, or Service Provider, due to the retrieval of [company_name] Products and their transmission (including products downloaded by the customer by means of a WAP connection).
§ 8 – Customer Protection by [company_name]
- Furthermore, the customer is responsible for ensuring that no illegal content is transmitted in the course of using [company_name] Products, in particular the contents as described below:
Illegal contents comprise in particular:
- Representation of violence
- Call to violence
- Racial discrimination
- Illegitimate gambling in the meaning of the Gambling House Law and the Lottery Law - Providing pornographic services in the meaning of Section 197 nos. 3 and 3bis StGB (so-called hard pornography / excrement pornography).
- As soon as [company_name] becomes aware that the customer is transmitting prohibited contents as described above, [company_name], or a third party authorized by [company_name], has the right to have these contents promptly deleted or barred, and to take measures to prevent these contents to be transmitted. In such an event, [company_name] has also the right of termination without notice of all existing contracts with the customer. On request of any law enforcement authority in connection with a preliminary investigation against a customer, [company_name] will communicate the customer’s mobile phone number to the competent authority, to the extent permitted by law.
- [company_name] collects and processes personal customer data only to the extent necessary to perform and fulfill the contract concluded with the customer. It is thus necessary for the purposes of using [company_name] Products to store the customer’s mobile phone number in order to be able to make the Product at all available for the customer. In order to be able to use some specific Products, it is necessary to collect and store further data.
- For some specific [company_name] Products, it is necessary that third parties send contents and services directly to the customer, or for the customer to have direct access to the contents provided by third parties. In order to make this possible, [company_name] will communicate the customer’s mobile phone number to the respective third party.
- Beyond the provision of [company_name] Products, personal customer data shall not be communicated to third parties, unless the customer has been informed accordingly and has given his/her consent. By retrieving [company_name] Products, the customer shows [company_name] his/her interest to receive further information on [company_name] Products. Customers may at any time withdraw their consent to receive information on [company_name] Products. This can simply be done by calling [company_name] by sending an email to [support_email], or a letter to [company_name], [company_address] stating the customer’s mobile phone number and his/her withdrawal of consent.
- [company_name] customers are advised that communicating personal data (such as names, mobile phone numbers) of other [company_name] customers in the course of using [company_name] Products (e.g. during an SMS chat) is not allowed under data protection provisions.
§ 9 – Customer Content within the context of [company_name] Products (also see § 7, para. 1)
- In as far as the customer in the course of using [company_name] Products inserts personal contents, to be accessed also by third parties according to the Product’s nature, such as in connection with an SMS chat or Product, the customer grants the right to [company_name] to present, publish, and disseminate such contents in a form that is in accordance with the respective [company_name] Product.
- By inserting personal contents, the customer assigns to [company_name] all copy rights and rights of use of these contents and agrees not to request any compensation for their publication, communication, or commercial use, etc. With respect to [company_name], such rights shall be valid throughout the universe, in perpetuity.
- It should be noted that the [company_name] customer, with respect to any content he/she inserts and transmits in the course of using [company_name] Products provided for that purpose, shall leave the decision to [company_name] as to when, how, and to what extent the content will be made available or transmitted to other customers. In as far as [company_name] redirects or links the customer from his/her website or from other sites of [company_name] Products to foreign contents, the above-stated provisions apply accordingly.
- [company_name] reserves the right to amend, in whole or in part, products comprising third party contents, at any time and without notice.
§ 10 – Fees for [company_name] Products
In as far as a customer has concluded a term contract with his/her mobile phone network provider or Service Provider, the fees for the use of [company_name] Products are billed together with the customer’s mobile phone invoice. With respect to customers with pre-paid cards, fees for retrieved [company_name] Products are due from the customer immediately at the time of the Customers use of the Product and shall be debited directly from the pre-paid credit. The same applies for payment procedures offered by third parties (e.g. mobile phone net providers).
§ 11 – Warranty for [company_name] Products
- [company_name] continuously endeavours to maintain a high quality standard.In the event, however, of a Product being faulty, the customer is entitled to the statutory warranty rights. If a [company_name] Product proves to be faulty, the affected customer must promptly inform [company_name], stating his/her mobile phone number, the order date of the respective Product and the respective day of delivery. This may be done either by email to [support_email], or by letter to [company_name], Guinness Enterprise Centre, Taylor’s Lane, Dublin 8, Dublin, Ireland.
- [company_name] strives to provide Products with the maximum up-to-dateness and operability. In order to do so, [company_name] regularly carries out inspection and maintenance works that may temporarily affect the availability of some or all [company_name] Products. When redirecting third party contents and services, temporary transmission problems may also occur. In the interest of its customers, [company_name] always endeavours to keep downtimes as short as possible. The customer assents to any resulting impairment to a proportionate extent.
§ 12 – Liability
- [company_name] only assumes liability in the event of a simple negligent infringement of material contractual obligations by [company_name], its employees, representatives, and vicarious agents. In such a case, [company_name]’s duty to compensate for damage shall be restricted to direct and predictable damages. There will be no compensation for indirect damage and non- typical consequential damage.
- [company_name] does not operate its own mobile phone network. Therefore, in order to be able to use [company_name] Products, third party services (provided e.g. by the customer’s mobile phone network provider or the Service Provider) are necessary. If such third parties have any technical problems, transmission failures or temporary discontinuation of [company_name] Products or parts of them may result. [company_name] has no influence on this. [company_name] explicits points out that [company_name] cannot technically guarantee the receipt of the customers’ SMS nor that the customer receives the [company_name] Product.
- [company_name] assumes no liability for damaging data (e.g. viruses) contained in content transmitted by the customer within the scope of using Products provided for that purpose.
§ 13 – Right of Revocation / Termination of Contract
- Customers may revoke this contract in writing at any time within one week from the date of conclusion, by letter to [company_name], Guinness Enterprise Centre, Taylor’s Lane, Dublin 8, Dublin, Ireland. or by email to [support_email] or as stated in the specific terms and conditions of the service. It is not necessary to state any reasons. The time limit shall be deemed observed by the timely dispatch of the revocation.
- The above right of revocation is excluded in such cases as provided by law.
- The contract concluded between [company_name] and the customers may at any time be terminated by either party without stating reasons in accordance with subparagraph 1.
- Termination without notice by [company_name] is possible in the event that [company_name] Products are abused or material contractual obligations are violated by a customer within the scope of using [company_name] Products.
§ 14 – Intangible Property Right / Copyright / Data Protection
- The websites operated under the above web reference or under different labels together with representations, photographs, drawings, comics, image sequences, contents, texts, teasers, video clips and other video material of [company_name] and its contractual partners enjoy unlimited protection throughout the universe. All rights remain reserved. All related intangible property rights are irrevocably owned by either [company_name] or the licenser granting use to [company_name]. If a customer in this connection infringes third party licence rights resulting in claims against [company_name], the customer shall hold [company_name] harmless. It is allowed, in accordance with the present GTC, to download, save and play the programmes for personal use, provided they remain unchanged. Any other use, in particular transmitting them to third parties, is prohibited. Equally, it is prohibited to use the available contents for commercial purposes. A violation of the present provisions entitles [company_name] and its contractual partners to terminate without notice (for cause) all existing contracts concluded with the customer. [company_name] reserves the right to claim damages.
- Any additional use of the copyrighted programmes is subject to [company_name]’s prior approval in writing. This particularly applies to:
- the copying of contents on additional data media;
- the creation of systematic collections.
§ 15 – Data Protection
- [company_name] takes all technically feasible and reasonable measures to protect the data stored by it. If a third party should, however, illegally succeed in bringing under its control or using the data stored with [company_name] or its contractual partners, liability on the part of [company_name] and its contractual partners is excluded. The same applies analogously to the contractual relationship between [company_name] and its contractual partners.
- Data Storage and Exploitation
At the registration of the customer, personal data are stored to open and administrate his/her account. In addition, some data may be stored with [company_name] or third party providers when the customer makes use of the range of products and services.
- Dissemination of Personal Data to Third Parties
[company_name] uses the customer’s data to perform all services offered in conformity with the present contract and applicable law, to maintain the customer’s relationships and to submit offers. The customer agrees to the fullest extent to his/her personal data being stored and exploited by [company_name]. The customer may at any time prohibit the use and processing of his/her data for marketing purposes. A notice to this effect is to be addressed in writing to [company_name], stating the customer reference number. If [company_name] provides services together with third parties, or through third parties, to customers at home and abroad, [company_name] has the right to make all personal customer data known to it available to such third parties. It should be noted that in different countries, the storage, processing, and dissemination of personal data may be subject to different laws and regulations. [company_name] may submit customer data to the authorities, to courts, and/or to companies entrusted with debt collection and credit information, if this serves the purpose of asserting claims.
- Phone and Internet Abuse / Recordings
When using products and services from [company_name] and its contractual partners, the customer agrees to observe these GTC, any individual stipulations, and the relevant provisions stipulated by law. In particular, services must not be abused for the purpose of planning or fulfilling elements of offence. Commercial resale is not allowed. The customer explicitly agrees to phone calls (orders received) being recorded for the purpose of ensuring customer satisfaction and for the proper processing of customer complaints regarding the provided services, and agrees to SMS exchanges (connection data) being recorded in log files. Such recordings may only be used in the event of customer complaints or in officially ordered proceedings. The abusive dissemination to third parties is not permitted.
§ 16 – Prohibition of Set-off
- Customers have no right to set off claims for damages asserted by them (for all time and effort) against [company_name]’s and its contractual partners’ unpaid invoices and invoices due.
§ 17 – Default
- After expiry of the term of payment, [company_name] is entitled to interest on arrears at a rate of 5 % p.a., without any notice of default being necessary. An invoice is deemed to be accepted 10 days after receipt, unless the customer objects to it. If the customer is in default with the payment, [company_name] may disable his/her access to all its services and to the services of its contractual partners and/or terminate the contract with immediate effect.
§ 18 – Failure of Services
For the services offered to their customers, [company_name] and its contractual partners operate with a maximum degree of carefulness, reliability and availability. Unless explicitly agreed upon in individual contracts, any kind of warranty is excluded, to the fullest extent permitted by law. In particular, [company_name] and its contractual partners grant no warranty that the services can be accessed without interruption, that the requested connections can be established at any time, or that stored data remain available under all circumstances. If providing the services becomes impossible or unacceptable for [company_name] and its contractual partners due to force majeure, or acts of nature beyond their control, such as forces of nature, natural disasters, officially ordered measures, industrial actions (also occurring in third companies involved in providing the services), breakdown in transportation or energy, terrorist attacks, war, civil war, other types of armed conflicts, lock-out, supply shortages, assaults on [company_name]’s or its contractual partners’ technical infrastructure through the internet, and other unpredictable circumstances, or if the provision of the services is interrupted, affected, impeded, slowed down, made impossible due to a shortfall in third party services or due to a breakdown of [company_name]’s or its contractual partners’ hard and soft ware, the performance obligation on the part of [company_name] and its contractual partners shall be suspended. Failures, deficiencies or breakdowns do not justify claims for compensation. The above statements apply analogously to the legal relationship between [company_name] and its contractual partners.
§ 19 – Customer Service
[company_name] maintains a general customer service Email address: [support_email]; Country specified phone numbers and email addresses you can find in the specific terms and conditions
§ 20 – Amendments of the GENERAL TERMS AND CONDITIONS
[company_name] reserves the right to amend these GENERAL TERMS AND CONDITIONS at any time and to adapt them to the current services. [company_name] shall give due notice of amendments of the GTC to the customer.
§ 21 – Severability Clause
If any of the provisions of these GTC is found to be invalid in whole or in part, this shall not affect the validity of the remaining provisions and the invalid provision shall be replaced by a valid provision which closest reflects the meaning and purpose of the invalid provision and is legally admissible. The same applies if the GTC contain any gaps.
§ 22 – Jurisdiction and Applicable Law
- The operation of any international treaty/convention relating to the sale of goods, which can be excluded by the parties, does not apply and is hereby explicitly excluded. More specifically, the applicability of the Vienna Convention 1980 (CISG 1980) is hereby explicitly excluded.
- If the Customer acts on behalf of any other party, he/she/it shall be liable, without the liability of those others, towards [company_name] as if he/she/it were the Customer.
- If any provision of these General Terms and Conditions proves void or voided vis-a-vis the Customer, a valid provision is deemed to apply instead which approximates the void or voided provision as much as possible.
- All disputes between [company_name] and the Customer shall be submitted to the exclusive jurisdiction of the competent court in the Netherlands.
- All Agreements concluded by the [company_name] shall be exclusively governed by Dutch law.